Bogus DMCA Threats As A Marketing Strategy

from the impressive dept

We've seen all sorts of misuses of the DMCA over the years, but this one probably wins the contest, hands down. It's a company (who I will not name for reasons I explain later) that makes DRM technology. Today, the company put out a press release saying that it had sent out cease-and-desist letters to Apple, Microsoft, Adobe and Real for violating the DMCA. And, just how do they claim that these four companies violate the DMCA? Well, in the twisted logic of the press release, "mere avoidance of an effective copyright protection solution is a violation of the act." This isn't actually true, but in a press release you can claim whatever you want. Therefore, the fact that the DRM used by these four companies isn't "effective" (by which the company means not using its own DRM solution) supposedly means that they're violating the DMCA. This is really sneaky for a few reasons, but we're not going to name the company involved because this is clearly a marketing stunt, rather than anything serious. They're abusing the DMCA to get press coverage.

First of all, notice that they didn't actually file a DMCA takedown notice or file any actual lawsuit. They simply sent a cease-and-desist (and, of course, their own press release) -- which is effectively meaningless. Cease-and-desist letters can be (and often are) completely ignored. The recipient is under no requirement to follow. In normal circumstances, where a cease-and-desist actually has some weight behind it, it's because the sender of the cease-and-desist will file a lawsuit if the recipient doesn't comply. Of course, in this case, the company in question cannot file a DMCA lawsuit, because it has no standing. Even if it were true (and it's not) that having bad copy protection was a DMCA violation, you have to be the copyright holder to file the DMCA notice (otherwise you can get into trouble). This company is not the copyright holder... they're just some no name maker of DRM software that thinks a cheap publicity stunt abusing the DMCA will get them attention.

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  1. identicon
    Dosquatch, 11 May 2007 @ 5:57am

    FTFA: It makes illegal and prohibits the manufacture of any product or technology that is designed for the purpose of circumventing a technological measure which effectively controls access to a copyrighted work or which protects the rights of copyright owners. Under the DMCA, mere avoidance of an effective copyright protection solution is a violation of the act.

    OK, anti-circumvention clause, sure. But "the mere avoidance of an effective" blah, blah... if it were "effective", then "mere" avoidance shouldn't be possible. Nevermind, though, what they're saying here isn't too far out of the fold, they're just restating (poorly) the intent of the anticircumvention clause.

    Where they really fall down the rabbit hole is here: without regard for the DMCA or the rights of American Intellectual Property owners, actively avoiding the use of MRT's technologies.

    BWAAAHAHAHA! OMG, this is almost as funny as HBO trying to rename DRM!

    Look, I don't care how effective your new content protection crud is, I don't even care if it's the best DRM ever and is completely uncrackable, there is no, NO, NO requirement in the DMCA or elsewhere that requires anybody to ever use your product. They can use whatever they want, including none at all.

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