A Look At Twelve Years Of Dangerous Unintended Consequences From The DMCA

from the stifling-free-speech-in-the-name-of-hollywood dept

The DMCA has been in place for a dozen years now, and the harm done by its provisions has become quite clear. The framers of the DMCA did not take into account the unintended consequences of the law -- and even one of the main authors of the law, Bruce Lehman, now admits it was a mistake (though, as far as we know, he still hasn't apologized to James Boyle, who accurately predicted many of unintended consequences of the DMCA, only to have Lehman threaten to "rip his throat out" and to get Boyle denied tenure). So, twelve years in, the EFF has put out a document highlighting all of the dangerous unintended consequences of the DMCA:
  • The DMCA Chills Free Expression and Scientific Research.
    Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.
  • The DMCA Jeopardizes Fair Use.
    By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public's fair use rights. Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal-use copies of movies they have purchased.
  • The DMCA Impedes Competition and Innovation.
    Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple has used the DMCA to tie its iPhone and iPod devices to Apple's own software and services.
  • The DMCA Interferes with Computer Intrusion Laws.
    Further, the DMCA has been misused as a general-purpose prohibition on computer network access, a task for which it was not designed and to which it is ill-suited. For example, a disgruntled employer used the DMCA against a former contractor for simply connecting to the company's computer system through a virtual private network ("VPN").
Clearly, it's long been time to rethink the entire premise of the DMCA, but it seems like there's little appetite for Congress to actually do this. Hell, the EFF put out a similar document two years ago, highlighting the unintended consequences and calling for a rethink.

And what's happening instead? Via ACTA, the US isn't just doubling down on the worst of the DMCA, it's trying to spread it around the world and to make sure that the US cannot fix the problems of the DMCA by creating an agreement that will allow DMCA defenders to say that we can't fix the DMCA or we'll violate our "international obligations."

Filed Under: copyright, dmca, unintended consequences

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  1. icon
    Dark Helmet (profile), 9 Mar 2010 @ 7:41am

    A thought:

    "The framers of the DMCA did not take into account the unintended consequences of the law"

    There would obviously still be room for abuse, but why can't lawmakers adopt a format that includes a brief header on their intentions for each law and perhaps each subsection of the law. That way, for whatever section of the DMCA that covers anticircumvention law, they could have stipulated in the "Intention" section that the law was not intended to be used to stifle legitimate personal backups.

    Then, when cases such as encryption on DVDs were brought to court by the EFF or whoever, they could just point to the intention of the law and the judge could put the smackdown on the company.

    Again, obviously all systems will allow for SOME room for abuse, but it seems to me that this intention invocation would clarify much and close at least some of the loopholes....

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