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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. identicon
    Anonymous Coward, 9 Mar 2010 @ 7:17am

    free expression isn't unlimited. dmca doesn't limit free speech, except where that free speech starts to impact others.

    dmca and fair use will always be an issue. the type of fair use demanded often would mean opening a product up entirely to widespread piracy or duplication. talk about unintended consequences.

    dmca only blocks hacking and reverse engineering. sometimes it is applied to widely, but exceptional cases do not make the whole concept of dmca invalid.

    dmca doesn't change computer intrusion laws. a contractor who is no longer in employee should not be access the systems. it isn't the employers fault.

    citing narrow misapplications or issues doesn't detract from the good and valid uses for dmca. your logic would suggest that the best way to stop street corner squeege beggars is to outlaw squeege production. it is foolish logic.

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