Project Launched To Fix The Anti-Circumvention Clause Of The DMCA
from the fix-it-now dept
While we were certainly happy that the White House came out in favor of allowing mobile phone unlocking, we were dismayed that they said the fix was to apply a narrow change to telco law. That’s bizarre, because the whole problem came out of copyright law — specifically the DMCA’s anti-circumvention clause, 17 USC 1201. We’ve long argued that the anti-circumvention clause was a huge problem. It makes any attempt at circumvention of DRM or other “technical protection measures” illegal, even if the content being unlocked would not violate copyright law. That’s really incredible when you think about it. Bypassing DRM on public domain material, for example, would still be considered infringing under 1201. Yikes!
So it’s great to see a new campaign kick off, called FixTheDMCA.org, entirely focused on the problem of Section 1201.
While many in the tech community like to complain about the entire DMCA, it’s important to remember that some of the DMCA was actually quite good: setting up things like clearly defined safe harbors that separate platforms and services from the actions of their users was a necessary step in creating the web that we know and love today. The problems with the DMCA are with both section 1201 and with the notice and takedown provisions (shoot first, confirm later), and both of those should be fixed. So it’s good to see this effort under way, specifically targeted at the anti-circumvention clause.
Unfortunately, this may be the hardest part of the DMCA to fix. For reasons that still aren’t entirely clear to me, Hollywood is obsessed with anti-circumvention clauses. They demand them in every new copyright law being put in place around the globe. It’s the one part of Canada’s new copyright law that was most troubling. Anywhere you see new copyright laws popping up, you’re almost certain to see anti-circumvention clauses. It’s one of those things that the entertainment industry insists on, and simply won’t budge over. I still don’t understand why they’re so insistent on it, since it really seems to only harm legitimate buyers, and do next to nothing to stop actual infringement.
Hopefully, as people realize that Section 1201 leads to ridiculous situations like not being able to unlock your mobile phone, we can start to get Congress to recognize that the anti-circumvention clauses are a problem that needs fixing, and a site like FixtheDMCA is a good place to start.
Filed Under: 1201, anti-circumvention, copyright, dmca, exemptions, fix the dmca
Comments on “Project Launched To Fix The Anti-Circumvention Clause Of The DMCA”
The problem with encryption based DRM is that you have to give the user the content in a usable form. In general DRM is easy to break because of this, and needs the protection of anti-circumvention to try and make it effective.
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No, it really doesn’t. That was put in os that especially bad DRM could be used as a flimsy excuse to criminalise format-shifting.
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. In general DRM is easy to break because of this, and needs the protection of anti-circumvention to try and make it effective.
Except that it doesn’t make it effective. What it does is to absolutely guarantee that it will be ineffective. Why bother to make something that actually works when the law says that it works even when it doesn’t.
This is like King Canute arguing that we don’t need to spend money on flood defences because the tide stops when I say so anyway…
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Tide goes in, tide goes out. Never a miscommunication. You can?t explain that
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Hey, Bill, how’s things over at Fox News?
Re: Re: King Canute
Canute never expected the sea to stop coming in – he was demonstrating it would come in regardless in order to show up fawning sycophants who claimed otherwise.
So good example, just completely the wrong way round 🙂
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The obvious fix is to give the user content in an unusable form. Plobrem solved!
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EA is going to sue you for revealing their new SimCity business model…
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Those who set forth the encryption standard for DVDs came up with a ridiculously weak cypher and then got Congress to do their dirtywork by passing a law making it illegal to break that encryption. Why do the studios bother to continue encrypting DVDs? I think it’s so they can claim that anyone making a copy is breaking the DMCA.
The copy-protection people should realize that no matter what form of copy protection they come up with, they will never win. No matter how tough the protection is, it will be quickly defeated (the latest “Twilight” movie comes to mind).
“I still don’t understand why they’re so insistent on it, since it really seems to only harm legitimate buyers, and do next to nothing to stop actual infringement. “
Because it lets them have more control over how buyers are able to think about using the content.
The enhancements to the law it accomplishes is them being able to say ‘See your honor, they set out to steal from us and the evidence to support this claim is they circumvented the locks we had to put in place to protect the content.’
Consider it like how DoJ likes to add on as many possible charges to get their targets to accept lesser charges (that most likely wouldn’t have stood up on their own).
See how important our content is, we had to have all of these extra things put into place. Now accept us having final say over anything technological.
When people get power they get a kind of brain damage, they become obsessed with keeping themselves in power. Governments willingly have handed them more and more control, crushed innovation, and averted disruption for them. It accomplished nothing to actually stop the problems it is supposed to address, but they committed to this path. Its like how the word of the Pope can’t be changed no matter what… even if its obviously wrong.
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Because it lets them have more control over how buyers are able to think about using the content.
Not really because it doesn’t work anyway. However what does happen as a result of DRM anti-circumvention is not protection for content publishers – it is actually protection for tech companies that get in first to occupy the space.
It works like this. A group of tech companies band together and set a “standard” for DRM. They then persuade the content companies to sign up to this standard.
The content companies then spend all the money on lobbying and lawsuits – which prevents other tech companies and startups from competing without entering into expensive licensing deals – whilst the orginal group (or sometimes just one) sits back and enjoys a monopoly. Of course the content still gets pirated so the content companies don’t “benefit”
Think Apple fairplay, think CSS, think AACS and the ridiculous content protection scheme that the BBC was bullied into supporting for terrestrial HDTV and you will see what I mean.
Legally mandated DRM is a con trick played by the tech companies on the content companies
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Just as copyright is a con trick played by the content companies (publishers) on the creators of content. They say a conman is the easiest person to con.
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Just as copyright is a con trick played by the content companies (publishers) on the creators of content. They say a conman is the easiest person to con.
and of course – as spinners of tales – the creators are themselves conmen (of a sort) so your theory works there too!
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The spinners of tales usually do so to entertain people, the publishers spin tales out of greed.
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Agreed – which is why I said “of a sort” – the sort in this case being those that you want to be “conned” by.
After all most magicians use tricks that are also used by real conmen – but people happily pay to see magic shows.
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I think it is more so that the some tech companies are giving them what they are demanding.
https://en.wikipedia.org/wiki/DVD_Forum
Fairplay was an answer to demands that Apple couldn’t get past. If they wanted iTunes to be successful they needed the content industry to give it its blessing.
The content industry is obsessed with getting control no matter what, convinced that all they need is the next big thing and the hundreds of times they failed before were just flukes.
There is a set of “technology” companies who are making a lot of money offering solutions that most people can see as flawed. Dtecnet was a little monitoring company, the brainchild of someone with connections to the cartels. He sold it to MarkMonitor and made bank. MarkMonitor made bank when they were acquired by Thompson Reuters (or Reuters Thompson the dyslexia wins sometimes).
These “tech” companies only exist to collect rent from the cartels to save them from the boogeymen in their minds.
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I think it is more so that the some tech companies are giving them what they are demanding.
and some have realised that there are advantages to be gained by giving in to the demands.
Consider HDCP for example. It is supposed to provide protection to high definition content streams to reduce piracy. To be effective for the content companies it has to be secure (and AACS also has to be secure).
Yet it was designed from the outset NOT to be secure. It could have been made (much more) secure for a relatively trivial cost (10,000 gates according to Ed Felten).
So why not spend that extra for a better scheme?
The answer is simple. With HDCP in place and the DMCA anti-circumvention measures (as well as similar measures in UK and europe) you cannot make any HD device unless you join the HDCP cartel. This costs serious money – ?10000 just to join the interest group (that does NOT give you access to any crypto keys or the authority to make an HDCP compliant device – it just gives you access to enough information to (officially) know what is involved).
To actually be allowed to make an HDCP compliant device costs far more and involves a series of legal commitments that you might not want to make.
It is a simple restaint of trade put together by the equipment manufacturers, ostensibly for the benefit of content companies. However the only practical effect is to raise the costs of entry for prospective new equipment manufacturers.
Remember kids, shift key is the devil and disabling autorun is a felony.
btw, is Microsoft guilty of secondary infringement due to their aiding and abetting? The shift key bypass was even advertised as a feature.
Although the Emperor has no clothes, one is not to speak of it.
I’d explain why Hollywood is so for this clause, but unfortunately what I wrote is locked up behind DRM thus can not be legally copied.
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That’s okay, I manually decrypted the microchip that runs the DRM scheme. That’s not circumventing, that’s straight dismissal.
this has to be a good thing and i hope it is successful. however, it needs to definitely ‘go viral’ as it affects not just Americans, but everyone. this is done by the entertainment industries to maintain control of their stuff AFTER THEY HAVE SOLD IT. how ridiculous is that? these disks and downloads and what they are played on are the only things that you buy, but never own. even the entertainment industries execs would kick up if they couldn’t do what they wanted with anything they bought, regardless of what it was. why, therefore, should they be able to restrict what people do with their stuff? the world needs this stupidity removed, quickly and permanently!!
DMCA?
How long until somebody sends a takedown to FixTheDMCA.org?
Re: DMCA?
If FixTheDMCA.org is not infringing any content owned by the sender of a DMCA takedown, then the sender has just perfectly illustrated another aspect of the DMCA that needs to be “fixed”.
By “fixed”, I mean repaired as in the same way as you get a pet repaired in order to prevent offspring.
Re: Re: DMCA?
I thought you meant repaired as in how you get a pet repaired when it has no prospect of any more satisfying life and you want to limit its suffering.
Re: Re: DMCA?
FixTheDMCA.org is an anti circumvention device, and is an illegal group under Section 1201
Re: DMCA?
DMCA? Please, they’ll send ICE after the site.
I still don’t understand why they’re so insistent on it, since it really seems to only harm legitimate buyers, and do next to nothing to stop actual infringement.
That’s what they’ve been doing for ages with their anti-piracy efforts. It does absolutely nothing for pirates and harms their paying customers. No surprises then.
They are obsessed with it because circumventing such things enable usage outside their control and stops them from charging multiple times for the same thing in different formats. In the end it’s all about greed and screwing up the people.
how?
My question is this;
Most phone firmware will ask for an unlock code if you insert a different carrier’s SIM card. If you type in the correct code the phone will be unlocked. You have not altered the copyrighted software. You have not used the program in a way it was not designed. You have simply provided the key parameter the program requested. How can this be illegal?
Re: how?
The parameter(number) you’re entering is a decryption key, which you may not be “authorized” to possess, allowing you to circumvent a “technological protection measure”, and tools that allow you to bypass those protection measures are illegal under the DMCA.
The prime (pun for you crypto fans!) example of this is the AACS encryption key, which if you know it, you can decrypt the copyright protection on most Blu-ray discs.
http://en.wikipedia.org/wiki/Illegal_numbers
Directionality of anti-circumvention
It’s sad that the law prevents consumers from circumventing the interests of a small vested group, rather than the other way around.
Anti-Circumvention Clause
My bad. I initially read “Anti-Circumcision Clause”.
To be honest, I didn’t know what to think about the subject.
This is like someone building a fence that blocks the public sidewalk and then making it illegal to jump the fence.
Does DRM magically stop working when the content it “protects” becomes public domain?
Oh, wait. Content never becomes public domain again. Ever. That would devalue the content.
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No.
What happens is…let’s say I have a DRM’d copy of Oliver Twist bought from Amazon or some other company. That book is in the public domain. Amazon cannot sue me for distributing copies of their ebook. However, in order for me to exercise my legal right and copy and distribute the ebook I bought from them, I have to circumvent the DRM…which they can sue me over.
So basically, unlike copyright having a balance in that the work passes into PD and you can’t be sued over it…DRM doesn’t. The guy who owns and controls the DRM has control over the content you’ve bought, even when he is not supposed to have any control over it.
With DRM, the likes of Disney don’t actually need to extend their copyrights any longer. They can say to themselves “Let Mickey fall into the public domain, we don’t care. We’ve already bought for ourselves the right to sue when someone breaks our admittedly weak locks”.
Breaking a digital lock just to enjoy a form of entertainment on a different device should never be illegal.
Would it be valid to amend the DMCA to say, “It is legal to circumvent DRM in cases for which the intended use of the content would be legal if it were not protected by DRM. Tools which enable such circumvention are also legal.” (with appropriate legalese, of course)
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Or since the only reason circumvention is illegal is because the DMCA says so, just remove the part that makes circumvention illegal. This would make things the way they used to be: you own your devices and can use them as you see fit, but if you use them to violate other laws, you’re still on the hook for those violations.
Another DMCA Fix
If we’re amending the DMCA anyway, what absolutely needs to be fixed is the take-down system, in the sense that you have, under penalty of perjury, need to have a good-faith believe that the work you demand to be taken down is actually the work you are the copyright owner of, or its authorized agent.
Right now you can claim birds singing is infringing on Star Wars Menace, as long as you are the copyright holder of Star Wars, or its agent. If you are not, you are in trouble… but the work you complain about can be anything, even something blatantly different, and there is NOTHING that can be done — under the DMCA.
Good to see O’Reilly on the list of supporters. They are one of the publishers who sell their e-books DRM free.
For reasons that still aren’t entirely clear to me, Hollywood is obsessed with anti-circumvention clauses.
Why, the reasons are very clear. The whole anti-circumvention obsession was born from obsession with DRM itself, which was born from paranoid fear of piracy combined with desire for control.
DRM prevents copying technically, but breaking it renders it useless. So DRM proponents attempt make breaking it illegal, in futile attempt to prevent breaking to prevent copying. It’s just a stupid abuse of the legal system.
Here is a very good review of this issue: https://www.youtube.com/watch?v=yYqkU1y0AYc
Control
Hollywood loves anti-circumvention laws so they can always be the gatekeeper to your digital content. It is no matter if every Court in the land approves your fair-use when they just punish you for cracking their lock instead.
Then lets recall once they have this law in place that little app you like using to crack your BluRay then becomes unlawful and the FBI/CIA get to hunt down the people who wrote it including long jail terms.
All a battle for control where politicians just sit twiddling their thumbs when no one has paid them to fix this right.
Fix Safe Harbor
If you’re looking to fix the DMCA, why not fix the so-called “safe harbor” loophole that allows websites to get away with murder when it comes to hosting infringing content.
A lot has changed since the DMCA was passed. Hosts can now take advantage of technology to verify that material uploaded to their sites is not infringing, but most don’t bother. Update the law to put more responsibility onto the hosts to verify that files uploaded do not infringe on the copyright of others. Provide content owners easy-access to Content ID systems (like YouTube) so they can more efficiently protect their work from pirates.
Fixing the DMCA cuts both ways.
Re: Fix Safe Harbor
Content ID is a joke. It misses more often than it hits, contributing to massive headache to people completely innocent of infringement. Since Content ID is also unable to take Fair Use into account, it fails twice.
Re: Fix Safe Harbor
” Hosts can now take advantage of technology to verify that material uploaded to their sites is not infringing, but most don’t bother.”
That’s funny, I’m an avid reader of technology related news and I completely missed the invention of a system that accurately identifies which content is infringing and which content is not, and doesn’t do major harm to the right of free speech.
Oh wait…you only care about the “is not infringing” part. The fact that such a system must automatically damage free and legal speech doesn’t matter to you.
Re: Fix Safe Harbor
There’s only one issue with Safe Harbour, and it’s an easy fix.
Anyone sending a takedown notice should swear under penalty of perjury that they own the copyright to the material they want taken down.
That should stop the false positives in their path, which is the only issue with Safe Harbor.
We could also edit the $750-150k per infringement to only apply to provably commercial infringement, but that’s simply common sense.
No such thing as a safe harbor
Please don’t perpetuate that lie. The DMCA, and especially the “safe harbor” provision, did nothing to encourage the growth of the Internet. The “Safe Harbor” provision is an Orwellian mis-naming if there ever was one, as it does nothing good for the Internet; all it does is expose sites and service providers to greater restrictions and greater liability in return for a promise of safety that, as we see with the Megaupload case, isn’t worth the paper it’s printed on if the bad guys really want to make you stop causing trouble.
If there had been no Safe Harbor, at some point someone would have sued some website over hosting infringing content. They would have replied with a defense that they operate under Common Carrier doctrine, and have zero liability to do anything whatsoever about the data they handle, and so the plaintiffs can go screw themselves. And they would have won, and it would have set a precedent. (And it would have done so back before the rise of wireless devices and cable modems consolidated power in the hands of companies that don’t want to operate as common carriers, so today the network neutrality problems they’re causing for us would never have come along in the first place.)
The DMCA took that away from us, and between the “Safe Harbor” and the legitimization of DRM, directly set up every bit of copyright abuse that’s been used against the Internet ever since. There is nothing good about the DMCA, and it needs to be repealed in its entirety.
Re: No such thing as a safe harbor
I happen to agree with you here. It’s one of the few times that I have to disagree with Mike Masnick.
StartupBus / SXSW Launch
Off topic, but since I was at the event. This is a project out of the StartupBus to SXSW.
http://americas.startupbus.com/teams/west-coast-team-1/#.UT41SNE4WG8
Check out the main site: http://www.grassroots.io/