Finnish Appeals Court Overturns Decision That Said It Was Okay To Circumvent Ineffective DRM
from the so-that-makes-it-effective-again? dept
Almost exactly a year ago, we wrote about a rather confusing legal decision that came out of Finland that said that no laws were broken in showing how to circumvent the notoriously weak CSS encryption scheme found on DVDs. The reasoning was that there was nothing wrong with breaking an encryption scheme if it was “ineffective.” Of course, that opens up all sorts of questions. If it’s illegal to crack DRM that is effective, but the only way to prove that it’s ineffective is to crack it… then, what happens? And, of course, once the encryption is cracked, haven’t you then automatically shown that it’s ineffective, thereby making it okay — even if it was effective until you cracked it? The mind boggles. Apparently, it was equally mind boggling for a Finnish appeals court who has overturned the ruling. That said, the new ruling is still problematic. It still seems troublesome that anyone could be found to have broken the law for merely explaining how to circumvent a copy protection scheme. That holding leads to obviously bad outcomes. Anti-circumvention clauses are really dangerous restrictions on free speech, trying to criminalize the explanation of how to do something that’s potentially infringing, rather than the infringement itself. It’s a crutch relied on by the content industry that still can’t come to terms with the fact that copy protection isn’t a good idea. But rather than deal with that via business model changes, it simply passes laws that tries to stop people from doing anything the industry doesn’t like.
Filed Under: circumvention, css, drm, finland
Comments on “Finnish Appeals Court Overturns Decision That Said It Was Okay To Circumvent Ineffective DRM”
why
Why should anyone try to circumvent DRM? Isn’t that against the very idea of DRM? Only pirates would be obsessed with circumventing DRM. Someone says “I’m selling you content with DRM. Don’t try to circumvent it.” And you promptly go ahead and try and break into the house, and then complain when you’re hauled up before the law. How logical is that?
Unless and until DRM is outlawed, it makes no sense to complain when you are penalized for trying to break into another man’s property.
Re: why
Why should anyone try to circumvent DRM? Isn’t that against the very idea of DRM? Only pirates would be obsessed with circumventing DRM
Hmm. All sorts of reasons.
* You purchase a legal DVD, but it won’t work on your Linux computer.
* You purchase a bunch of music that is DRM’d but the company that supplies the DRM changes its mind and turns off the DRM server, killing all the music you legally purchased.
* You purchase legal content and then move to a new computer, but the DRM won’t let you transfer the legally purchased content to that new computer.
* You purchase legal content, and under the first sale doctrine are allowed to sell it to another party, provided you no longer keep a copy, but the DRM prevents it.
* and on and on and on.
There are plenty of examples where it should be perfectly legal to circumvent DRM that has nothing to do with piracy.
Unless and until DRM is outlawed, it makes no sense to complain when you are penalized for trying to break into another man’s property.
Other than all the reasons above and the many more that have been discussed over the years.
And, no, breaking DRM is often not about “breaking into another man’s property.” It’s about actually being able to make legal use of things that you, yourself purchased.
Re: why
Why? Because DRM more often than not cripples the products you actually paid for???
To use your analogy… wouldn’t you be tempted to break into your own house because it has some “protection” that, while designed to prevent you from inviting others into it, also happens to deny you entry, say, through the garden door?
Re: Re: why
Thats what I was going to say its like buying a new car and the only door you can use to enter or exit is that back passenger door.
Re: why
Go awy indusry shill
No Subject
* You purchase a legal DVD, but it won’t work on your Linux computer.
This is the fault of the OS, not the DRM.
* You purchase a bunch of music that is DRM’d but the company that supplies the DRM changes its mind and turns off the DRM server, killing all the music you legally purchased.
Next time, read the terms of service more carefully and purchase music where the DRM servers are less likely to be shut down overnight.
* You purchase legal content and then move to a new computer, but the DRM won’t let you transfer the legally purchased content to that new computer.
Again, failure to read the terms of service is the owner’s blunder, not DRM.
* You purchase legal content, and under the first sale doctrine are allowed to sell it to another party, provided you no longer keep a copy, but the DRM prevents it.
I won’t comment on this one because I’ve never seen this happen.
* and on and on and on.
First, I’m not defending DRM on any level. My points here are to state NO ONE has any right to circumvent an application when knowing full well the limitations of the application. Damn, Mike, you should know better. Circumventing DRM is piracy. It’s no different than removing the locks off a person’s home just so you can see what’s inside and possibly do whatever the hell you want.
If you don’t like DRM encoded software, you can:
-Write the company and state your opinions. Get others to do the same.
-Don’t buy the damn software to begin with. This is by far the most effective solution, yet it’s also the most overlooked.
-Find alternatives which are DRM free.
Your arguments to circumventing DRM are invalid.
Re: No Subject
> Circumventing DRM is piracy. It’s no different
> than removing the locks off a person’s home
> just so you can see what’s inside and possibly
> do whatever the hell you want.
That’s a false analogy. We’re not talking about *actually* circumventing the DRM technology here and making an unauthorized copy. The Finnish court ruling (and it’s mirror version in the US’s DMCA) makes it a crime to even *talk about* or explain *how* to circumvent DRM.
To make your lock analogy accurate to the situation at issue here, it would be like the cops coming to arrest me– not because I took the locks off your house and broke in– but merely because I posted a message online explaining how to use a pair of bolt cutters to cut off a padlock.
I have no clue how Finnish law works but the provision of the DMCA that criminalizes even talking about circumvention techniques seems to be a clear and bright-line violation of the 1st Amendment. The Supreme Court has held that discussions of how to build nuclear weapons are protected speech, yet for some reason it’s not a violation of the Constitution to jail people for talking about how to copy a DVD?
It’s high time someone challenged the DMCA and the Supreme Court ruled on this flagrant and unconstitutional overreach by the Congress.
Re: No Subject
“It’s no different than removing the locks off a person’s home just so you can see what’s inside and possibly do whatever the hell you want.”
Your analogy is completely off, and whats worse is that no one here is seeing how off you are.
It’s not like trying to break into someone else’s house, it’s more like you purchase a house off of someone and they decide to make you call them every time you want to get in. Then you get arrested for braking and entering when you try to get in by yourself. Or in this case explaining how to pick a lock.
“This is the fault of the OS, not the DRM.”
Linux has no limitation on playing DVDs. The DRM has a limitation on OSes.
“Next time, read the terms of service more carefully and purchase music where the DRM servers are less likely to be shut down overnight.”
All DRM servers inevitably shut down. It’s just a matter of time.
“Again, failure to read the terms of service is the owner’s blunder, not DRM.”
I believe it is illegal to have that particular stipulation but no one has put it to the test in court.
“I won’t comment on this one because I’ve never seen this happen.”
Open your eyes. We’ve commented about it here before.
Re: Re: No Subject
“It’s not like trying to break into someone else’s house, it’s more like you purchase a house off of someone and they decide to make you call them every time you want to get in. Then you get arrested for braking and entering when you try to get in by yourself. Or in this case explaining how to pick a lock.”
Better analogy. I like this one.
But the simple fact remains you still bought the house KNOWING the lock situation. If the “rules” stated you had to get permission to get inside your house, and you ignore the rules because the “key keeper” decided to move and not let you in, you’re still at fault when caught breaking and entering your own home.
I understand the subject of the initial blog was about posting info on how to circumvent the “key keeper”, but it’s still no excuse for anyone to take the info and use it because they don’t like the rules.
“Open your eyes. We’ve commented about it here before.”
Sorry, but I don’t read every single blog entry or every comment.
I expected the backlash of my comments but I stand arrogant to say it’s the buyer’s fault for purchasing the DRM crap to begin with. A fool and his money are soon parted. Damn, I love that saying.
But it’s typical for people to whine after the fact rather than to do something about it.
Re: Re: Re: No Subject
People are doing something about it. Unfortunately, if we vote with our wallets and don’t buy the media, it’s blamed on piracy. So, we have to find other ways to get the message across.
Add that to the fact the many of these things are NOT advertised with information about their DRM restrictions (I still meet people who have no idea about the existence of DVD region coding, for example), and what do you have left? Plus, what about the people who have bought DRMed media (e.g. PlaysForSure, Google Video), who now have no way of playing their legally bought content without stripping the DRM?
I have another analogy. Imagine you buy a safe for your house, but to open the safe and retrieve your own valuables you need to call the security company. Fine. But then one day, the security company go out of business. What do you do? Shake your head and say “well, that’s my valuables down the drain”? Or do you find a way to circumvent the security and get your property back?
Re: No Subject
Circumventing DRM is piracy.
I’ve never heard this one except from the MPAA and the like. What is your definition of piracy? For example, why is format-shifting my DVD so I can watch it on my laptop without having the disc with me piracy? Keep in mind that nobody else is using that DVD at the same time. Why is ripping and re-burning a scratched DVD so it will play on an XBox piracy? I understand these are violations of the DMCA, but what makes it piracy?
Re: No Subject
“* You purchase a legal DVD, but it won’t work on your Linux computer.
This is the fault of the OS, not the DRM.”
Nope. It’s possible to play DVDs on Linux, no problem. The issue is that in order to do that, you need software to bypass the CSS code and woefully weak as that is, it’s still covered by the DCMA and thus technically illegal in the US.
There is now a legal piece of software to play DVDs (LinDVD) but it basically sucks compared to the free software. So, it’s a problem with the unecessary DRM, not the OS. people should not be forced to pay the Microsoft tax to play their own DVDs.
“Circumventing DRM is piracy. “
Bullshit. I’m sold a DVD / CD / music download / whatever. Then, i’m told “sorry, you have to purchase an approved piece of hardware or software to play the disc/file, we’ll just assume that you’re a pirate if you don’t.
in any other industry, people just find ways around restrictions. Ever been told that you can’t plug a Sony DVD player into an LG TV? No, of course not because that would kill sales, and people would find ways around it anyway. Why is it suddenly “piracy” because I want to play my legally obtained media on a legally obtained piece of hardware?
Re: Re: No Subject
“Bullshit. I’m sold a DVD / CD / music download / whatever. Then, i’m told “sorry, you have to purchase an approved piece of hardware or software to play the disc/file, we’ll just assume that you’re a pirate if you don’t.”
My statement remains. This is YOUR bullshit argument to justify means which you FEEL you should have because you BOUGHT DRM encoded software to begin with.
I am NOT defending DRM. I am defending the RULES to DRM, which is not the same. I can not stand DRM which is why I don’t purchase DRM encoded software. Ever.
You people tend to forget it’s those who broke the rules in the first damn place which brought in DRM. All those people who think copying from CD to computer is legal because they’re entitled to a “backup” copy then turn around and give the copy away.
I know DRM hurts legitimate consumers but I can’t feel sorry for anyone who buys the damn stuff. I just can’t.
Instead, I point the fingers at you incompetent idiots who feel justified to circumvent DRM because it doesn’t suit your needs when you know damn well what you were getting into before hand.
Now, the rest of us legitimate users will have to watch as DRM 2.0 gets worse, makes things much more difficult all because you asses broke current DRM technology.
I’ll thank you idiots ahead of time when my TV has to have 25 different DVD players, 623 different set-top boxes to view online content, and whatever else comes out of this.
NOT A SINGLE PERSON HERE HAS MADE THEIR CASE AGAINST BREAKING DRM TECHNOLOGY AFTER PURCHASE.
So shut the hell up and help stop DRM and piracy.
Re: Re: Re: No Subject
Now, the rest of us legitimate users will have to watch as DRM 2.0 gets worse, makes things much more difficult all because you asses broke current DRM technology.
You do realize that piracy doesn’t drive DRM development anymore, right? Businesses are now looking at DRM as a way to remove features and sell them back to the customer. The companies realize that DRM doesn’t stop piracy, but continue to wave that flag to garner sympathy when they lobby Congress.
I think the main problem people have with your argument is that the only solutions are to do without or find a free alternative, if it exists. Another problem is that in many cases the use of DRM violates the consumer’s right to make an archival copy of a purchased product. Many people consider doing without an unacceptable solution to the problem.
You can keep pressing the “you knew what you were buying” argument and advocating a boycott, but that simply isn’t going to work for a majority of people. If I want to make a digital copy of a movie I purchased, I have no qualms about circumventing the DRM to do so.
NOT A SINGLE PERSON HERE HAS MADE THEIR CASE AGAINST BREAKING DRM TECHNOLOGY AFTER PURCHASE.
More correctly, nobody has made a case that you feel justifies breaking DRM technology after purchase. Unfortunately, you’re arguing from an ideological position that is simply at odds with reality. A DRM content boycott isn’t going to happen.
I’ll thank you idiots ahead of time when my TV has to have 25 different DVD players, 623 different set-top boxes to view online content, and whatever else comes out of this.
People kept breaking the DRM on iTunes and WMA tracks, and yet the end result is most of the companies dropped DRM on their digital music or offer DRM-free alternatives. Your predictions don’t measure out; companies will be convinced to drop DRM when it inconveniences a significant portion of their users, regardless of whether their DRM schemes are being cracked.
Re: Re: Re:2 No Subject
“Another problem is that in many cases the use of DRM violates the consumer’s right to make an archival copy of a purchased product.”
Therein lies the problem when people still believe they have this right.
They don’t in the digital world.
The ability to create a backup copy was due to the instability of magnetic media back in the day. Because it wasn’t reliable, it was possible to make a backup in case the original was damaged.
In the digital world, this archiving feature is no longer legal. This is due to the stability of digital media, which if taken care of, can last 10 years or more which usually outlives newer versions of the same software.
I’ve yet to see any documentation anywhere that allows anyone to create backup copies of music or movies, only computer software.
If any exist, please let me know.
Re: Re: Re:3 No Subject
“The ability to create a backup copy was due to the instability of magnetic media back in the day. Because it wasn’t reliable, it was possible to make a backup in case the original was damaged.”
Erm, yeah. And DVDs are also fragile in the hands of a small child (and in the case of manufacturing flaws that screw iup a small percentage over time). So the right is still necessary, and most importantly still there. Nobody has officially revoked the right to make a backup. What has been blocked is the right to circumvent DRM to do so – a small but iportant point. But, most consumers do not know these subtleties of copyright law.
“I’ve yet to see any documentation anywhere that allows anyone to create backup copies of music or movies, only computer software.”
I don’t have a link, but I’m not aware of any legal ruling that makes this OK for software but not movies. Aren’t they all just digital software now anyway?
Re: Re: Re:3 No Subject
I’ve yet to see any documentation anywhere that allows anyone to create backup copies of music or movies, only computer software.
The Audio Home Recording Act allows for the reproduction of copyrighted audio by a consumer using either analog or digital recording equipment. This is why it’s legal to rip MP3 files from a CD that you’ve purchased, or to make a backup of the CD.
The protection has been typically assumed to cover video content as well, since it simply makes sense, although the law only specifies audio. I am unaware of any court case affirming or denying the right to make an archival copy of a DVD.
About the court decision
I live in finland, and according to this decision I am breaking the law if I watch legally purchased DVD movies on my linux using VLC player or similair that contain the reverse engineered algorithm. Funny thing is that if I download movies p2p in divx format etc. and watch them, my action is not illegal its just blameful.
Could
If it can, then how will movie studios survive? Every action movie that I have ever seen, and almost every drama, has had a situation that shows the antagonists committing a crime. Usually with enough detail that someone else could also try and commit the same crime. Without the extraordinarily [lucky|smart|skilled] protagonist, and his [plucky|loyal|sexy] sidekick to investigate they may get away with it…
Re: Could
My initial title was: Could “explaining how” also apply to other illegal activities?
DVD Backup?
How about this one. Backups of DVD’s? that is something people do, and i’m not talking about those that just use it to copy movies for thier friends, but the ones that have kids and want there movies to last a while.
Re: DVD Backup?
I do. After my daughter scratched her bear in the big blue house 3 times I got tired of buying it over. So I iso’d it burned it to a 50 cent disc I could care less about. I also re iso’d my lord of the rings disc 1 sinc I scratched it once and my daughter stepped on the disc I re purchased. Now I iso the movies when I get them and stream them to my computer/tv and put my movies on a shelf. I bought a license for the content not the media. would I copy movies if I wasn’t charged 10 bucks for a replacment no. If I can get a disc fo 50cents the replacement should be no more than 2-3 bucks. I have gone the rout of providng proof and having the disc replaced in the past: time + $ = major suck. It all comes down to buisness models, practices and ultimately END USER EXPERIENCE.
Re: Re: DVD Backup?
“After my daughter scratched her bear in the big blue house 3 times I got tired of buying it over. So I iso’d it burned it to a 50 cent disc I could care less about. I also re iso’d my lord of the rings disc 1 sinc I scratched it once and my daughter stepped on the disc I re purchased.”
So you’re blaming DRM restrictions because you can’t teach your daughter how to properly handle DVDs?
Pathetic.
Here’s an idea: Be the parent and take control of setting up movies for your daughter (she’s obviously too young to do it on her own, unless you teach her) and educate yourself to properly store your DVDs so they’re not stepped on.
This is the worst excuse for circumventing DRM on this page. Congratulations.
Re: Re: Re: DVD Backup?
So you’re blaming DRM restrictions because you can’t teach your daughter how to properly handle DVDs?
No, he’s blaming DRM restrictions for removing his ability to make an archival copy of legally purchased content. You can argue about whether he has the right to make an archival copy, but attempting to cast his point as a parenting problem makes you look like a pompous ass.
Re: Re: Re: DVD Backup?
Strange. That strikes me as being the most legitimate reason for stripping DRM. Do you honestly think that a child of the “Bear In the Big Blue House” is going to handle *anything* carefully? Far better to have a backup in case of problems (which will happen with a young child). It’s the same argument as with using a copied CD in the car stereo instead of the original – if something happens, you have a backup, which you *should* be well within your rights to make..
Or are you with the industry people who would prefer that people buy their property several times over instead of protecting it? I can see their reason ($$$$), what’s yours?
Re: Re: Re:2 DVD Backup?
Hmmm… that should have said “Do you honestly think that a child of the “Bear In the Big Blue House” target age group…”. Never mind.
It's like being locked out of your OWN house
And then being told that you can’t circumvent the alarm system to get back into your house. Circumventing alarm systems is a criminal affair, and only criminals would want to do so.
Oh, yeah, and your house? It’s forfeit. You should have read the alarm system terms and conditions when signing up for our alarm… Sorry!
To the folk defending DRM, there is a difference between “what’s legal” and “what’s right”. If you got sold a cake that you could only eat on a saturday, and it’s monday when you buy it, you’d be pissed off. Having someone tell you that if you’d read the small print you would have noticed wouldn’t make you feel any better.
That’s all DRM does to those who legally purchase things. It limits the way you can access it, for absolutely no reason whatsoever. It’s been proven time and time again the no DRM system is foolproof, and once *one single copy* has been cracked, that’s it, the DRM is useless on every single version of that item, and it serves only to annoy those who legally buy it.
Absolutely ridiculous.
You people are missing the point.
In case my reply above is skipped over (which happens), I’ll repeat so it’s linear to all the bull comments posted.
FACT: YOU BOUGHT THE ITEM KNOWING IT’S DRM ENCODED.
This simple fact means you deal with the crap that comes with DRM. Breaking its rules so it suits your needs is wrong no matter what excuse you come up with.
I still don’t get why you people even buy DRM encoded crap to begin with (I have an idea, but I’ll keep it to myself).
Re: You people are missing the point.
> Breaking its rules so it suits your needs is
> wrong no matter what excuse you come up with.
When those rules conflict with the law, the rules lose. The law of the United States says that I’m entitled to make a backup copy of any copyrighted media that I legitimately purchase.
If the DRM “rules” try and make that impossible, then the DRM “rules” lose. They certainly don’t trump the United States Code.
Re: Re: You people are missing the point.
The problem is that the DMCA now makes it illegal to circumvent encryption (or create, distribute, or possess software tools to do so, or tell anyone else how to do it), regardless of whether the activity would otherwise be covered by fair use. The content industry knew they needed this because they obviously cannot stop anyone from breaking DRM by technical means, so they needed to get it outlawed so they could try to prevent it by legal means. We’ve seen how well that’s going, but the fact remains that if you rip a DVD to your computer, you are breaking the law.
If I’ve misstated something about this twisted monstrosity of legislation, please correct me. We should criticize the DMCA, but I want to criticize it accurately. Thanks.
I realize I’m talking about US law on a story about Finland, but I don’t really know anything about the law in Finland. Sorry.
Re: Re: Re: You people are missing the point.
> The problem is that the DMCA now makes it
> illegal to circumvent encryption (or create,
> distribute, or possess software tools to do
> so, or tell anyone else how to do it),
> regardless of whether the activity would
> otherwise be covered by fair use.
The statute itself does not contain the phrase “regardless of whether the activity would otherwise be covered by fair use” line. That’s just the interpretation the industry has run with because it the prohibition on circumvention doesn’t have any language that excepts Fair Use.
However, copyright law is clear that people have a right to make backup copies of media they have legitimately purchased.
At best there’s a conflict of laws here that needs to be resolved by the Supreme Court but I don’t think the industry ever wants it to get to that point because they’d likely lose– not just on the Fair Use issue but on the constitutional issue. There’s no question that the DMCA’s prohibition on even talking about circumvention technology violates 200+ years of 1st Amendment jurisprudence. As I mentioned before, the Court has found that talking about the processes involved in constructing nuclear weapons to be protected speech. They could hardly then turn around and carve out an exception to the 1st Amendment which holds discussion about copying DVDs as somehow more dangerous than thermonuclear bombs.
Re: You people are missing the point.
Again, you’re assuming that people are tech-savvy enough to know that DRM exists before purchase, let alone what restrictions it would entail. I can assure you that the average consumer does not know of DRM’s existence until someone has to explain why they can’t play their iTunes download on their $50 MP3 player or the DVD they picked up on a foreign holiday in their DVD player. Then, they’d rather find a way around the restrictions rather than pay double for the same content in a playable format.
Re: Re: You people are missing the point.
“Again, you’re assuming that people are tech-savvy enough to know that DRM exists before purchase, let alone what restrictions it would entail. I can assure you that the average consumer does not know of DRM’s existence until someone has to explain why they can’t play their iTunes download on their $50 MP3 player or the DVD they picked up on a foreign holiday in their DVD player. Then, they’d rather find a way around the restrictions rather than pay double for the same content in a playable format.”
Sorry, PaulT, but your assumption is also invalid because these same people won’t be tech-savvy enough to circumvent, either.
The *majority* of consumers will take the offending media back and complain it doesn’t work. Hell, it’s what I did when my DVD player couldn’t recognize the new anti-copying restrictions placed on newer DVDs.
I’ve listened to quite a few complaints from people about this and my reply was to write the company and ask for their reasons why they’re being punished. If many more consumers started doing this, DRM begins to fade out.
Oh, wait a second! It’s being done so now. This is why many online music stores are carrying non-DRM tracks.
It takes appropriate steps, not circumvention, to stop DRM.
You know this to be true.
Re: Re: Re: You people are missing the point.
“Sorry, PaulT, but your assumption is also invalid because these same people won’t be tech-savvy enough to circumvent, either.”
That’s where asking the tech-savvy person comes in. Most people don’t know about DRM before they buy the thing, but you can be damn sure they’ll get their neighbour / son / work colleague / whoever to strip the DRM for you.
“I’ve listened to quite a few complaints from people about this and my reply was to write the company and ask for their reasons why they’re being punished. If many more consumers started doing this, DRM begins to fade out.”
I actually agree with you here, and you can be sure it’s something that I’ve done myself many times. Unfortunately, these things move extremely slowly. However, while there’s no alternative (e.g. try to get a movie on a non-DRMed format nowadays) most people won’t wait for the corporations to get their heads out of their asses.
What pedantic schmucks are actually arguing that little 10-year-old Suzy needs to read through 20 pages of small-print EULA before she buys the latest American Idol track off iTunes? There is a threshold of reasonable research one should do with purchases, but something like that is generally left to cars and houses.
stop
stop defending DRM it is crap and easily circumvented i refuse to buy it normally but if forced too i will and bypass it.
The DMCA is anti-competitive
The DMCA is anti-competitive. It gives copyright holders?and the technology companies that distribute their content?the legal power to create closed technology platforms and exclude competitors from interoperating with them. Worst of all, DRM technologies are clumsy and ineffective; they inconvenience legitimate users but do little to stop pirates. If you buy a song from iTunes, it’s encrypted using Apple DRM, so you can only copy it to an iPod–not a standard MP3 player. Similarly, songs encrypted using Microsoft DRM, can only be copied to players that include Microsoft software. To interoperate with the Apple or Microsoft formats, other vendors need to license Apple or Microsoft DRM, and neither will license to a competitor. As in the PC market, Microsoft is content to monopolize only software and services, while Apple wants to monopolize hardware, too.
What?s sad is that major parts of the DMCA are totally unnecessary and go way beyond the rights offered in the original copyright act. Prior to DMCA, the courts had already been developing a body of law that struck a sensible balance between innovation and the protection of intellectual property. That body of law protected competition, consumer choice, and the important principle of fair use without sacrificing the rights of copyright holders. And because it focused on the actions of people rather than on the design of technologies, it gave the courts the flexibility they needed to adapt to rapid technological change. But when the congress enacted the DMCA, it eliminated the court?s discretion?courts now can only follow the new law. In the name of fighting piracy, however, the DMCA gives copyright holders?and the companies that distribute their material?legal tools that can control who makes products compatible with their technology platforms and able to access their content.
If you think this is okay, think again. Remember how IBM tried to capture the market for computers compatible with its popular PC through the copyright on its BIOS. Happily, the courts nurtured the practice of clean room reverse engineering so that a compatible BIOS could be written without infringing IBM?s copyright. Today many successors to IBM compete to build cheaper and more powerful desktop and laptop computers, all to the good for consumers and small businesses. If software reverse-engineering methods had not been sheltered by the courts, IBM might have used its copyright on the BIOS to thwart competition and maintain dominance in the business PC market to this day. The anti-circumvention provisions of the DMCA threaten innovation and competition in all digital industries the same way.
So, this is not the first time that deep-pocket corporations have tried to control competition via the copyright law. It?s just the first time that congress has allowed it to happen. In effect, the DMCA creates an anti-circumvention right that is materially different from and much more sweeping than the underlying copyright. Aside from a few vague exceptions, any tampering with DRM systems?even tampering that does not infringe copyright?is illegal. DRM systems and the DMCA give copyright holders much greater control over their products and their customers than they have ever enjoyed under traditional copyright law.
The cost to consumers is not only the loss of what should be a competitive market, but a lot of inconvenience and often the loss of music they?ve legally purchased. Today, unless you only buy from one music site, you?re forced to have three or four different media players on your computer to listen to music you?ve legally purchased. And then, if the music store goes away for some reason or changes ownership (as in Urge leaving MSN Music), users may lose the rights to play their music or at the very least have to jump through many hoops to get their music to play again. Several times, I have personally lost the right to play music that I legally purchased because of this problem. As a result, today I make a non-protected copy of all the music I buy in case the music store goes away and I find myself unable to play music I?ve purchased.
The appeal of new technologies is that they allow us to consume media in new ways. The VCR introduced the idea of taping shows for later viewing. The invention of MP3 players like the iPod allowed consumers to put their entire music libraries in their pockets. Software emulators allowed consumers to play games designed for popular consoles like the PlayStation on their computers. But no more. Corporate greed has kidnapped digital music (and other forms of digital media) to control the market in a way that?s far from what the copyright act was supposed to be about. The Founding Fathers gave Congress the right to recognize copyrights in order to ?promote the Progress of Science and the useful Arts.? It hardly promotes progress to give a handful of companies the ability to tightly control how consumers use copyrighted content. Rather, progress is promoted in a technological marketplace of interoperable products, consumer choice, and fierce competition. The anti-circumvention provisions of the DMCA betray the constitutional vision. They impede rather than promote the progress of science and the useful arts.
Re: The DMCA is anti-competitive
Sing it, brother.