Copyright Office Admits That DMCA Is More About Giving Hollywood 'Control' Than Stopping Infringement

from the but-that's-not-what-the-law-is-about dept

We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."

But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.

The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?

Although the United States has consistently interpreted section 1201 as creating a cause of action separate and independent from copyright infringement, courts construing the statute to date have divided over its relationship to the traditional rights of copyright owners. There currently is a circuit split as to whether a violation of the access‐control provisions under section 1201(a) requires a “nexus” to infringement—i.e., that the circumvention be done for the purpose of, or otherwise relate to, infringing an exclusive right under section 106 of the Copyright Act. This issue has particular significance in the context of copyrighted computer programs embedded in everyday consumer products.

In 2004, the Federal Circuit held in Chamberlain Group, Inc. v. Skylink Technologies, Inc. that there must be a “reasonable relationship” between the access gained by the circumvention and the protections conferred by section 106. Chamberlain’s garage door openers contained copyrighted software controlling operation of the motor. The software included a “rolling code,” which prevented the system from activating unless it received a signal from an authorized transmitter. Chamberlain alleged that Skylink’s manufacture and sale of “universal transmitters,” which circumvented the rolling code and accessed the copyrighted software, violated the anti‐trafficking provisions of section 1201(a)(2). The court, however, rejected that claim, holding that section 1201 did not create a new property right, but rather, “introduce[d] new grounds for liability in the context of the unauthorized access of copyrighted material.” The court further stated that “circumvention is not a new form of infringement but rather a new violation prohibiting actions or products that facilitate infringement.” The court also expressed policy concerns, including the view that without an infringement nexus requirement, section 1201(a) would result in anticompetitive conduct unrelated to copyright concerns. The court ultimately held that the Copyright Act granted consumers “the right to use the copy of Chamberlain’s embedded software that they purchased” and, therefore, in the absence of copyright infringement or facilitating copyright infringement, the defendant could not be liable for a section 1201(a)(2) trafficking violation.

In 2010, the Fifth Circuit in MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc., relied on Chamberlain to conclude that “[t]he DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.” The United States, however, urged rehearing on the ground that that construction was “inconsistent with the text, structure, and legislative history of the DMCA.” Such a reading, the United States argued, “threatens to frustrate Congress’s purpose in section 1201(a)(1), which was to provide a federal prohibition against bypassing passwords, encryption, and other technologies that regulate access to a copyrighted work in circumstances in which the copyright owner would not otherwise have a remedy under the Copyright Act.” The court subsequently withdrew its opinion and substituted an opinion omitting the challenged portion of the original.

Later that year, the Ninth Circuit expressly declined to follow Chamberlain and instead rejected a nexus requirement as “contrary to the plain language of the statute.” In MDY Industries, LLC v. Blizzard Entertainment, Inc., the court held MDY liable under section 1201(a)(2) for trafficking in technology in the form of a self‐playing bot, which was designed to circumvent a technological control on a video game sold by Blizzard. In rejecting the reasoning of Chamberlain, the Ninth Circuit looked to both the statutory text and its legislative history. Among other textual considerations, the court noted that section 1201(a) refers to technological measures protecting access to “a work protected under this title,” while section 1201(b) refers to measures protecting “a right of a copyright owner under this title.” The court read this distinction to indicate that Congress intended section 1201(a) to “extend[] a new form of protection, i.e., the right to prevent circumvention of access controls, broadly to . . . copyrighted works.” Section 1201(b), meanwhile, was intended “to reinforce copyright owners’ traditional exclusive rights under § 106 by granting them an additional cause of action against those who traffic in circumventing devices that facilitate infringement.”

So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.

So, of course, that's not at all what the Copyright Office decided. Instead, it argues that there shouldn't be such a "nexus" requirement, because it might upset Hollywood to have less control. I mean, that's not the phrase it actually uses, but that's exactly what it's saying here:

The Copyright Office shares the concern that section 1201(a)’s protections for access controls have the potential to implicate activities far outside the traditional scope of copyright law. The Office does not, however, believe enacting an infringement nexus requirement to be advisable, as it could severely weaken the right of copyright owners to exercise meaningful control over the terms of access to their works online—a right that both Congress and the Executive Branch have properly recognized as essential to the development of the digital marketplace for creative content

If you don't live in the copyright world, this statement may not seem like a big deal, but it's actually a massive and hugely troubling admission. It's the Copyright Office saying that the point of anti-circumvention should be about giving copyright holders more control over digital marketplaces and not about preventing infringement. Of course, that's not what Hollywood has always claimed in the past. They always insist the reason they need anti-circumvention provisions all over the place is to stop infringement. But everyone has always assumed it's truly because they want more control and leverage over digital marketplaces. And here you have the Copyright Office admitting, right up front, that, sure, these provisions are about giving Hollywood extra control and not about stopping infringement.

The Copyright Office tries to justify this by arguing that (for example) bypassing the password protection on a Netflix or Spotify account might violate 1201, but wouldn't infringe on an underlying Section 106 right -- and thus 1201 without a nexus requirement is necessary to enable more Netflix or Spotify like markets:

In particular, Congress sought to facilitate the development of online content delivery platforms in which the consumer pays for access to copyrighted material rather than for possession of a copy. Section 1201(a) reflects Congress’ understanding that such models will succeed only if copyright owners have the legal right to prohibit persons from evading electronic paywalls or other technical measures used to limit access to users who satisfy the rightsholder’s specified terms.

But... this is not a copyright concern. That's a business model concern. If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law.

If Congress truly wants to protect Hollywood from people sharing their Netflix passwords, there are other ways to do it without trying to loop it into copyright law -- and 1201 is a part of copyright law. It shouldn't then be abused for completely non-copyright purposes. Having an underlying nexus to copyright is the only sane way for the law to actually be related to the fundamental rights under copyright law. But here, the Copyright Office is arguing that Hollywood should get non-copyright rights of control over digital marketplaces, just because it thinks that's good for Hollywood. And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.

Section 1201 Full Report


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  • identicon
    Anonymous Coward, 27 Jun 2017 @ 11:14am

    Constitutional problems

    So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.

    The constitution expressly allows for copyright while prohibiting other laws against free speech. The anti-circumvention rules mean one can't explain how to bypass DRM or distribute code that does this (courts have found computer code to be speech). So if there's no relation to copyright, what's the constitutional basis for this law?

    reply to this | link to this | view in chronology ]

  • icon
    AEIO_ (profile), 27 Jun 2017 @ 11:21am

    Really?

    "the Copyright Office's job is ... Not about what's good for Hollywood."

    Really? Have you lived under a rock your entire life? Haven't you ever heard of "Other Duties as Assigned?" Psssht. Peons and their tiny worries.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jun 2017 @ 11:28am

    The Trump/Bannon "economic nationalism" ideology could also play into the "What's Good for Hollywood is Good for America" mentality, since entertainment is one of the country's greatest net-exports, and copyright law (and/or its abuse thereof) is just one of many tools to enhance Hollywood's (and by extension, America's) continued profits.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jun 2017 @ 2:08pm

      Re:

      but surely, America doesn't see or get these profits because, tnx to 'Hollywood Accounting' Hollywood (and other branches of the entertainment industries) pay next to sod all in tax, keeping 99% of the income from ALL media itself/themselves!

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 27 Jun 2017 @ 11:32am

    I don't know why they haven't simply enacted separate laws already for protecting business models, etc., instead of trying to stretch others and cram in additions in all manner of bits of legal and civil code. It's not like they couldn't get these things passed.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jun 2017 @ 11:59am

      Re:

      Because this way is easier. Easier to get what they want, easier to rationalize in their PR pieces, and easier to do it all without more public outcry.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 27 Jun 2017 @ 11:35am

    Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

    Isn't it amazing how Masnick and Bush actually agree on what they're against? [Aside: that's just illustrating how easy it is to imitate Techdirt's loony linkage.]

    Techdirt provides NO support for that explicitly stated Right, but instead over-applies "First Amendment" to mean links to infringed content for purpose of violating that Exclusive Right.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jun 2017 @ 11:36am

      Re: Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

      Yawn.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 27 Jun 2017 @ 11:37am

      Re: Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

      And got through first try instead the lying "Held For Moderation"! Comment box has been working as implied by the "forms contract" today, but I doubt will last.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 27 Jun 2017 @ 12:02pm

        Re: Re: Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

        Nobody cares, Hamilton.

        reply to this | link to this | view in chronology ]

    • identicon
      Thad, 27 Jun 2017 @ 12:01pm

      Re: Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

      It also says "for limited Times".

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 27 Jun 2017 @ 12:25pm

      About that...

      Constitution says EXCLUSIVE RIGHT! Talk about tyranny!

      The real tyranny exists in how the US government has since extended the “limited time” which copyright terms were meant to last until well after a creator and their children are dead and buried.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Jun 2017 @ 9:52pm

      Re: Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

      When your method of control involves suing children and grandparents with no consequence or punishment, it's time you had that privilege taken away.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 28 Jun 2017 @ 12:43am

      Re: Control? Worse than that, Constitution says EXCLUSIVE RIGHT! Talk about tyranny! Right to control what you make? We've got to get rid what Bush called that "goddam piece of paper"!

      Yes, copyright gives you limited control in works covered by intellectual property. It does not give you control over how digital marketplaces work. Here, the Copyright Office is, incorrectly, arguing that it does.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 27 Jun 2017 @ 12:38pm

    And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.

    But the entire purpose of copyright is to benefit Hollywood and all the other large players in the copyright industry. Sure, it might have had another purpose long ago, but those times are long since past. There's not one single person in the entire government or the copyright industry who believes that copyright has any other purpose other than to ensure profits. That has become its defacto purpose.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jun 2017 @ 1:16pm

    Abolish Copyright

    The sooner the better.

    reply to this | link to this | view in chronology ]

  • icon
    Atkray (profile), 27 Jun 2017 @ 2:44pm

    I see Trump suddenly realizing that Alec Baldwin is an actor and that actors love copyright and in a knee jerk response nukes copyright to punish him.


    Then I wake up.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 28 Jun 2017 @ 4:59am

      Re:

      Unfortunately, he's more likely to be trying to find ways to block free speech and have those who mock him thrown in jail, than he is to do something that directly affects his former employers in reality TV and "sports entertainment".

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Jun 2017 @ 3:08pm

    Copyright vs Business Model

    But... this is not a copyright concern. That's a business model concern.

    Copyright is a business model. (One that should be eliminated. Not all "business" is "good business".)

    reply to this | link to this | view in chronology ]

  • icon
    Michael Donnelly (profile), 27 Jun 2017 @ 5:02pm

    Arrtgfghfghf.

    Sorry, that's all I can really say on this topic.

    (I am the first two letters in MDY Industries)

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 28 Jun 2017 @ 5:03am

    "If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law."

    For me, the entire thing is strange anyway. Surely, the copyright owners have negotiated deals that give them a minimum income per stream, right? So, every Netflix play or Spotify play gives them $0.X. If this is guaranteed in the contract, why then are they concerned with how many individuals are actually playing them. They might even get more if people watch their crap when the account owners are more interested in other content (for example, if I were to lend my Spotify password to my girlfriend, major labels would get a hell of a lot more play than they ever would when I'm using it to listen to largely independent music, therefore the RIAA types would get more income than if I didn't share).

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 29 Jun 2017 @ 4:48am

      Re:

      Because if your girlfriend didn't have your Spotify password, she would have to pay Spotify herself in order to listen to the stream, and that would be more money going to Spotify which the rightsholders could then demand their share of.

      reply to this | link to this | view in chronology ]

  • identicon
    Mason Wheeler, 28 Jun 2017 @ 8:54am

    as it could severely weaken the right of copyright owners to exercise meaningful control over the terms of access to their works online

    Earth to the Copyright Office: It's called copyright. It's not called accessright or usageright.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jun 2017 @ 9:47am

      Re:

      Copyright office to earth: Well, you have to copy it to use it, but don't worry we'll get right on that name change if it will make you feel better.


      Copyright: A system designed to ensure perpetual profits for doing something once, by fleecing the public to their detriment.

      reply to this | link to this | view in chronology ]


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