Yes, The DMCA Is Still Quite Controversial

from the anti-circumvention? dept

Michael Scott points us to an interesting blog post by law professor Tim Armstrong wondering if the DMCA is still controversial, noting that while many of the biggest fears associated with the DMCA when it was first passed did, in fact, come true, many of them were cut back by court decisions that limited the interpretations of the DMCA away from the most dangerous ones.

Dire predictions followed about how the DMCA would restrict fair use, distort competition, erode privacy, and jeopardize academic research. In the early years of the statute’s existence, these predictions appeared to be fully justified: the DMCA was invoked to attack a DVD player for the Linux operating system; to imprison a Russian programmer transiently present in the United States based on conduct that was lawful in Russia where it occurred, and to harass and threaten an American computer scientist in an attempt to deter him from publishing his academic research, among other things. Cases like these appeared to substantiate the view that the DMCA had fundamentally upset the historical balance between the rights of owners and the rights of users of copyrighted works.

I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.

He notes some more recent court cases, and the fact that the Library of Congress is finally approving consumer-friendly DMCA exemptions.

I don’t buy it, however. There is still plenty that is highly controversial about the DMCA, and the fact that producers are relying less and less on DRM doesn’t fix the massive problems that the law has created with its anti-circumvention provisions, that still make perfectly non-infringing activities illegal for no good reason at all. Separately, there’s a rather important lawsuit going on right now questioning the limits of the DMCA’s safe harbors, which could have tremendous chilling effects on internet services if the district court’s ruling is not upheld. And while it may be amusing that some of the DMCA’s biggest supporters are now complaining about the aspects they don’t like, that doesn’t make the overall law any less controversial for those who feel that it has always been a massive and dangerous overreach.

Unfortunately, it does seem like most people have accepted that the DMCA will not be fixed any time soon, but to claim that things are fine and dandy since we avoided the worst of the worst, seems to miss out on many of the ongoing concerns.

Filed Under: ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Yes, The DMCA Is Still Quite Controversial”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Re: Re: Re:

You are correct. These are not DMCA based since they involve only individuals who are being sued directly for copying and/or distributing content secured by copyright law. Copying and/or distribution have plainly occurred. The issues in each are directed to the damages provisions of statutory damages, two arguing that the awards against them are excessive and constitutionally infirm, and the third that an innocent infringment reduction of statutory damages should apply.

btrussell (profile) says:

Re: Re: Re: Re:

Copying and distributing?
Did they rip the CDs’ and then sell copies of them?

They could not do what they did unless someone previously ripped and made available.

If you give me a usb stick and tell me your resume is on it, which I then copy and distribute to others who will decide on your employment, am I infringing on copyright if it turns out you gave me music instead of your resume?

If everyone knew what they were downloading off of the net, would everyone continue downloading viruses?

nauer (profile) says:

Re: Chilling effects

I don’t think that the safe harbors for ISPs are under as great of a threat from erosion as the post’s author suggests. The more pressing issue left in the DMCA is the notice and takedown practices that occur these days. Ever since the 9th Circuit Rossi decision, protections for end user rights have been left wanting. From both an effort and monetary perspective, end users are usually at a disadvantage when it comes to fighting these erroneous takedown notices.

But, I think overall it’s safe to say that the DMCA has certainly injected much more predictability and confidence into the system than there was before.

Anonymous Coward says:

DMCA Problems Caused By Consumer Stupidity

If consumers were to adopt the simple rule: Do not buy anything with DRM in it, then most DMCA problems would go away. DRM-infected content would simply not sell. Instead consumers should buy DRM-free content from independent suppliers. It is perfectly possible to refrain from patronizing any of the large content suppliers (who are fond of DRM), for years on end. If the majors see the independents going from strength to strength, year after year, they will eventually get the message.

Consumers should stop being sheeple. No you do not need to see the latest Hollywood blockbuster. No you do not need to buy DRM-infected music. Just say no.

Chronno S. Trigger (profile) says:

Re: Re: DMCA Problems Caused By Consumer Stupidity

This is exactly what’s happening. Even Tim Armstrong saw it, he just came to the wrong conclusion.

“I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners.”

The DMCA is still controversial, but as businesses try to use it for what it is they find it’s a bad thing for business. So they decide to ignore it and go with what will sell. Thus we don’t hear as much about it any more.

Hephaestus (profile) says:

How to crash the internet using DMCA takedowns.

A really weird thought just occured to me …

Buy a section of a botnet and program it to issue DMCA takedowns. Wouldn’t that be a hoot. Making life miserable for a couple million people all of whom would then start complaining about the DMCA.

Or better yet when three strikes happens. A three strikes botnet.

It would bring to the forefront how proof is required and not acquisition …

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...