Does The DMCA Still Matter?

from the you-better-believe-it dept

Kevin Donovan writes in to point to law professor Tim Armstrong wondering if the DMCA is still relevant at all, now that so many content providers are dumping DRM. He also notes that we’re seeing fewer DMCA-related cases. Kevin supplies his own excellent response talking about the legacy of the DMCA, including the anti-circumvention clause, noting that it’s still holding people hostage. For example, he points out that everyone who bought an HD DVD player (picking the losing side in the battle) now would be breaking the law if they merely wanted to move the HD DVD content they legally purchased over to a more usable format. He also points to the importance of the DMCA’s safe harbor provisions, which protect service providers from copyright infringement by their users. Both of these are good points. Also, I find Armstrong’s first point, about fewer DMCA cases, unconvincing. All it really means is that many of the larger points related to how the law should be interpreted have been decided by the courts. That doesn’t change the chilling effects that those rulings have left behind. The law itself is still very, very relevant — mostly for unfortunate reasons.

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Comments on “Does The DMCA Still Matter?”

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13 Comments
Hellsvilla (user link) says:

Yes it still matters

As long as its possible to destroy the life of a kid who just wants to play his media, then yes, the DMCA still matters.

You think DRM (and litigation for hacking it) is going to go away? Haven’t you see BD+? Scratch that, I know you have.

The big media houses at least int he video world have not given up on drm, and they need the DMCA to hold up that house of cards.

Joe Harkins (profile) says:

The comments so far are looking at DMCA in a very narrow, self-interested way. I admit I bring that same lack of broader vision, but like those other comments, my position is just as valid.

Speaking as a freelance writer and web site developer, I can cite more than a few specific examples where I, and others in similar circumstances, have used the Safe Harbor provision to cause a hosting service to shut down access to pages, and even entire web sites, selling unlicensed copies of my work. Without DMCA, I would have had to mount expensive, long term legal actions against a variety of large business.

Thanks to the DMCA, in one case I can cite, a group of about 40 developers each were earning modest but helpful revenue from selling $15 and $25 mods to online eCommerce shopping carts and similar apps. One day, some wise guy, bundled them all onto one site, using the same shopping cart, and started selling the copyrighted codes.

It took a single letter from one of those developers, and less than 12 hours, to shut down the thief at his first host and the same, a few days later, when he tried again at another host. That was two months ago and he has not tried again.

So don’t think of DMCA simply in terms of big corporations. Unintended consequences are not always negative. In this case, DMCA empowers a little guy to stop theft in its tracks with one carefully configured notice of copyright violation.

DanC says:

Re: Re:

By the same token, it also allows people like Prince and Uri Geller to demand non-infringing content to be pulled from websites. The review process for DMCA takedown notices is practically non-existant, because nobody wants to deal with possible lawsuits. In practice, the alleged offenders are often guilty until proven innocent.

I don’t doubt that it the DMCA has a few positive effects. The problem is that the negatives far outweigh the positives. Take, for instance, the ebook DRM schemes that are being used to eliminate the rights of users to resell their legally purchased products.

Joe Harkins (profile) says:

DanC said: “ebook DRM schemes that are being used to eliminate the rights of users to resell their legally purchased products.”

Exactly which rights of users (in the legal sense of who owns what) are being denied? Buying one copy of a book, in any format, does not automatically include the right to make and sell more copies. Only the copyright holder, usually the author, has that right. That’s why it is called copy (wait for it) right.

Or do I mis-understand you?

DanC says:

Re: Re:

Yep, what Hellsvilla said.

If I purchase a book, I can legally sell it, loan it, give it away, etc.

If I purchase an ebook, I can no longer do any of those things without violating the DMCA. Furthermore, it’s a violation to attempt to retrieve those rights by attempting to remove those restrictions.

Another example I thought was funny was the Family Guy Star Wars spoof DVD that came out a while ago. On the front it was advertised that it also came with a “bonus” digital copy. In other words, they gave the consumer a compressed video version of the movie that anyone should be able to make for themselves. But it’s currently illegal because of the DMCA.

TSO says:

“Did you really think that we want those laws to be observed?” said Dr. Ferris. “We *want* them broken. You’d better get it straight That it’s not a bunch of boy scouts you’re up against- then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you’d better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.” — Ayn Rand, “Atlas Shrugged”.

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