Three Years Later: 1st Amendment Challenge Over DMCA's Anti-Circumvention Provisions Can Move Forward

from the took-'em-long-enough dept

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA's Section 1201. 1201 is the so-called "anti-circumvention" or digital locks provision of the DMCA, that says that it's infringing to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed to "circumvent" DRM or other "technological protection measures." Basically, if there's a digital lock on something -- doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.

Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing -- so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.

The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it's true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.

The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward... in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It's a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That's disappointing.

Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects -- and those projects were expressive in nature. The court buys that argument -- and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn't shown any actual injury, but the court points out that's ridiculous:

First, plaintiffs have sufficiently alleged that their proposed course of conduct is arguably proscribed by the DMCA. With regard to section 1201(a)(1)(A)’s circumvention prohibition, Dr. Green has alleged that he plans to circumvent TPMs for purposes of his academic research... and Mr. Huang and Alphamax have alleged that they plan to circumvent TPMs to create the NeTVCR... With regard to section 1201(a)(2)’s trafficking prohibition, Dr. Green has sufficiently alleged that he plans to include “detailed information regarding how to circumvent security systems” in a book about his research, and he has indicated that the “detailed information” will include computer code.... (“I am now writing an academic book . . . . I would like to include examples of code capable of bypassing security measures, for readers to learn from.”).... And Mr. Huang and Alphamax have alleged that they intend to disseminate “information about how to build NeTVCR,”... which permits the reasonable inference that they will disseminate the technological know-how and computer code required to circumvent the TPMs that bar access to HDMI signals.... Accordingly, plaintiffs have put forth a sufficiently “credible statement of intent to engage in violative conduct.”

So, that's good.

Also nice is that the court explicitly recognizes that "code is speech."

The Court, as do defendants... agrees with plaintiffs that the DMCA and its triennial rulemaking process burden the use and dissemination of computer code, thereby implicating the First Amendment. Although the question has not been addressed by the D.C. Circuit, as other courts have explained, code “at some level contains expression, thus implicating the First Amendment.”... Code is speech precisely because, like a recipe or a musical score, it has the capacity to convey information to a human.

However, the court rejects the straight up Constitutional challenge that 1201 itself is over-broad.

The Court is not persuaded that plaintiffs have alleged facts sufficient to state a claim that DMCA provisions are unconstitutionally overbroad because they “have failed to identify any significant difference” between their claim that the DMCA provisions are invalid on overbreadth grounds and their claim that those provisions are unconstitutional when applied to their proposed course of conduct.... Plaintiffs’ argument in both scenarios is that fair use is constitutionally required and that the DMCA inhibits fair use rights and thus is unconstitutional.... Plaintiffs allege a number of potential fair uses that the DMCA burdens because the Librarian denied exemptions requested by third parties in the 2015 triennial rulemaking process.... Plaintiffs’ as-applied claims, however, arise out of the denials of exemptions either they requested, or that would have covered their conduct.... Plaintiffs have not alleged that the DMCA “will have any different impact on third parties’ interests in free speech than it has on” their own. (“[W]hen, as here, the plaintiffs are themselves engaged in protected activity—when the challenged statute would have no greater impact upon the rights of nonparties than it would have upon the rights of the parties before the Court—there is no need to employ a traditional overbreadth analysis.”). The Court therefore need not reach the question of whether the “DMCA’s anti-circumvention and antitrafficking provisions are plainly legitimate in the vast majority of applications.”

In other words, the case can and should focus on the direct impact on Green and Huang based on what they were trying to do -- and the claims failed (in the court's opinion) to make a clear case how the statute itself was over-broad and unconstitutional. That at least leaves open the possibility of other cases making a better argument on that front.

It also rejects the claim that the Librarian of Congress violates the 1st Amendment in failing to grant certain exemptions.

The Court is not persuaded that plaintiffs have sufficiently alleged facts to state a claim that the exemption rulemaking process is an unconstitutional speech-licensing regime because plaintiffs have not alleged that the rulemaking process results in censorship through “suppressing disfavored speech or disliked speakers,”

Indeed, the court then claims that the DMCA 1201 triennial review process is not "content-based" and therefore it's not violating the 1st Amendment.

Plaintiffs have not alleged facts indicating that the rulemaking defendants’ decision of whether to grant exemptions in the 2015 rulemaking process was based on the content of what those who sought exemptions wanted to say, their viewpoint, or who they are.... The allegations here are therefore entirely distinguishable from speech licensing regimes where the scheme created a prior restraint based on the content of what the speaker wanted to express.

So, all in all a mixed bag. The case is still worth watching and could lead to some interesting rulings, but the bigger attempt to have the entire law declared unconstitutional seems to have hit a dead end.

Filed Under: 1201, bunnie huang, copyright, dmca, dmca 1201, fair use, free speech, matthew green


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    Mystical Text characterizes a spell, 12 Jul 2019 @ 12:37pm

    "credible statement of intent to engage in violative conduct"!?

    Accordingly, plaintiffs have put forth a sufficiently "credible statement of intent to engage in violative conduct."

    So they've stated intent to violate the law. -- To me, the court snidely anticipates they'll be charged as criminals. It does not read as supporting their proposed actions nor hint of over-turning DMCA.

    So what IS the alleged harm here? Jst a couple academics want to do mischief and tell others how to. It's no loss or harm to me.

    Now, IF allowed to attack TPM or other gadgets simply because want to see if can and then publish to the world how, then that entirely over-turns the CLEAR intent of the law.

    Are murderers and rapists harmed by prior prohibition of their actions? If they announce intentions, write down all details, and publish those to help other criminals, are they in the clear?

    Just yesterday you held as sacred the original intent of lawmakers, so logically you'd oppose this case and their proposed actions.

    Similarly from your views yesterday: IF this case goes as I expect to uphold DMCA, then you can never argue that was wrongly decided.

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    • identicon
      Anonymous Coward, 12 Jul 2019 @ 2:11pm

      Re:

      It's no loss or harm to me.

      Those academics who want to do mischief are some of security researchers responsible for finding bugs and security flaws in essential pieces of software like Windows, Apple, and Linux OS, or Office Suites, or browsers, or literally any piece of technology since it can all be exploited and has bugs.

      The loss or harm to you is if nobody does that, then the bugs don't get found and reported, security flaws don't fixed, and hackers steal your identity, drain your accounts, and make your life a miserable living hell. I find it astounding that someone actually wants that to happen to them. I do not, and therefore I say "shove off, don't spread your insanity any farther".

      Just yesterday you held as sacred the original intent of lawmakers, so logically you'd oppose this case and their proposed actions.

      Lie and misrepresentation of what was ACTUALLY said.

      Similarly from your views yesterday: IF this case goes as I expect to uphold DMCA, then you can never argue that was wrongly decided.

      People are entitled to their opinions and to criticize court cases. The decision going one or way the other has no bearing on being able to argue whether or not it was wrongly decided.

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      PaulT (profile), 13 Jul 2019 @ 3:59am

      Re: "credible statement of intent to engage in violative conduct

      You think you’re being clever but all you’re doing is demanding that criminals find ways to attack you before anyone else can set up a defense. After all, if it’s illegal to locate security issues, criminals will be the only people able to look.

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    Mystical Text characterizes a spell, 12 Jul 2019 @ 12:38pm

    The First Amendment is NEVER in conflict with Copyright.

    You're just asserting the pirate position that persons can take Content produced by other persons in First Amendment exercise, and enjoy their work without paying, or even gain money from it. That's not the conflict on one's own speech that you claim, it's conflict with taking of other people's work and property similar to other thefts.

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      Gary (profile), 12 Jul 2019 @ 1:34pm

      Re: The First Amendment is ALWAYS in conflict with Copyright

      Copyright is always i conflict with the first amendment. The government shall make no laws to restrict speech - but corporations have the Right to own speech, and prevent you from using it.

      Seems pretty clear to me - Copyright gives corporatights a Right of Censorship.

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      • identicon
        Qwertygiy, 12 Jul 2019 @ 2:38pm

        As with everything involving morals, laws, the morality of laws, and the laws of morality... it's a more nuanced situation than "the first amendment should protect all speech for all reasons but corporations get a waiver."

        For one thing, it's a bit silly to imply that corporations have rights individuals don't, in regards to this situation. Corporations are just one way that groups of people work together. It allows them to better resist copyright abuse than a single person, and it allows them to better employ copyright abuse than a single person. A corporation, consisting of multiple people, has more time and money to spend in court than a single person, consisting of a single people, does.

        For another, it's been long interpreted that the freedom of speech (and more crucially here, freedom of press) does not weigh in as the Rightest of All Rights. In fact, it is one of the weakest, and I believe that is a good thing.

        I have the right to speak to the police. I do not have the right to tell police that I've been robbed, when I have not, in fact, been robbed.

        I have the right to speak to McMickey employees. I do not have the right to tell McMickey employees that I will tear their hair out if they don't give me a discount.

        I have the right to speak to my neighbor. I do not have the right to yell at my neighbor every morning at 2 AM.

        I have the right to speak to my employees who are African-Americans, young women, homosexual, or sufferers of downs syndrome. I do not have the right to say that my employees are [REDACTED], [REDACTED], [REDACTED], or [RETARDED].

        I have the right to talk in public. I do not have the right to publicly announce my boss's credit card information.

        None of these have to do with copyright, but they are still quite valid restrictions upon free speech.

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          Stephen T. Stone (profile), 12 Jul 2019 @ 2:47pm

          You’re technically kind of incorrect. You can absolutely say all those things you believe you can’t. So can I, for that matter. But what we can’t do is escape responsibility for, and the consequences of, saying those things. The law cannot technically prevent a person from speaking — it can only punish them for expressing certain kinds of speech after the fact.

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          • identicon
            Qwertygiy, 12 Jul 2019 @ 3:22pm

            It depends on what meaning of "prevent a person from speaking" you are referring to.

            If you mean "rendering the person incapable of producing such speech", yes, that is generally not allowed, as it would involve violating my right to travel freely, my right to maintain good health, and my right to not be presented with an unequal punishment to the crime committed. (And possibly my right to remain alive. Mouths are kind of important.)

            If you mean "threatening a person with punishment if specific speech is produced by the person in the future", that is allowed in limited circumstances. Lawyers can be ordered not to reveal the identity or location of a witness, plaintiff, or defendant. Defendants can be ordered not to contact another individual, such as with a restraining order against harassment. Companies and agencies can be ordered not to publish personal information about people using the company or agency.

            If you are referring to the ability of DRM to prevent the copying of material, that is something more akin to putting a lock on your bike so that nobody can steal it. If the lock is crappy, it won't stop someone truly motivated from getting past it. If the lock is really crappy, it might keep you from being able to access your own bike without breaking it -- and perhaps the bike along with it.

            Of course, the law allows for that lock to be legally bypassed by regulated professionals, who in many states must reapply for certification every, oh, three years or so...

            But the law also allows for that lock to be legally bypassed by yourself, since you own it and can do what you want to it, even if what you want to do to it (such as "taking a chainsaw to the stupid piece of %@$^") may not be in line with the intentions (or financial interests) of the manufacturer.

            That part is where the DMCA's take on DRM is very problematic, and one reason why I hope that right-to-repair laws continue to gain traction.

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    • icon
      Stephen T. Stone (profile), 12 Jul 2019 @ 2:05pm

      How do you feel about corporations using copyright to silence legally protected speech?

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    • identicon
      Anonymous Coward, 12 Jul 2019 @ 2:13pm

      Re:

      The First Amendment is NEVER in conflict with Copyright.

      Copyright is a government law telling people what they can and cannot say. The First Amendment says the government can't make those kinds of laws. So you're literally wrong.

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      • identicon
        Anonymous Coward, 12 Jul 2019 @ 2:22pm

        Re: Re:

        ...and the only "get out of jail free" card Congress has given themselves is "fair use". But in this case, the DMCA ignores the fair use clause that prevents copyright from violating the First Amendment in both spirit and truth. Therefore, what the plaintiffs were arguing on a general platform is true. It's just not how to approach the court with that particular complaint, as the court wants to see personal harm demonstrated before overruling established law.

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        • icon
          Stephen T. Stone (profile), 12 Jul 2019 @ 2:29pm

          The DMCA also allows for the takedown of speech that is only potentially infringing upon copyright upon mere accusation. And since corporations own copyrights, corporations can use the DMCA — a extension of the government’s copyright system, and thus part of government power — to silence legally protected speech.

          But you’ll never hear copyright maximalists admit that. Or defend it. Because, hey, what’s due process compared to getting filthy pirates off the Internet without a trial?

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          • icon
            Anonymous Anonymous Coward (profile), 12 Jul 2019 @ 5:15pm

            Re:

            Maybe one of the corrections to the DMCA law should be an included considered responses to each of the 4 fair use questions that don't question the intellect of the ubiquitous 'moron in a hurry in the rain without an umbrella' for each and every specific infringement part. If the requester has to put that much into their take down notice, and it has to be, well at least sorta reasonable, then the expense of the take down might be greater than what is gained by taking the piece down.

            That along with significant penalties for non compliance and false requests and any other shenanigans that are currently played by DMCA requester's.

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    • icon
      Cdaragorn (profile), 14 Jul 2019 @ 8:44pm

      Re: The First Amendment is NEVER in conflict with Copyright.

      Except of course for the minor issue of the fact that nothing is taken when someone violates copyright.
      But then acknowledging what's really happening rips your entire argument to shreds so I guess I can understand why you continue to cling to that lie.

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    James Burkhardt (profile), 12 Jul 2019 @ 12:39pm

    The Court is not persuaded that plaintiffs have sufficiently alleged facts to state a claim that the exemption rulemaking process is an unconstitutional speech-licensing regime because plaintiffs have not alleged that the rulemaking process results in censorship through “suppressing disfavored speech or disliked speakers,”

    This standard seems strange given SCOTUS precident. As the article notes, the SCOTUS (In an opinion authored by Chief Justice Roberts, if I remember correctly) has stated explicitly that Fair Use is the relief valve that allows the current copyright regime to exist within the bounderies of the 1st Amendment.

    I must assume the plaintiffs did not raise this point. The court has accepted that SEC 1201 has negatively Dr. Green's ability to publish a book research, that he has reached the bar necessary to show the potential for injury that could have been bypassed by allowing for standard academic fair use exceptions. The circumstances highlight how a triennial review fails to provide the protections of fair use. Dr. Green would need to get his speech, otherwise allowed by fair use, licensed through the librarian of congress by providing an exception to 1201 every 3 years, based not on the fair use principles but on his ability to convince the librarian of congress that his intended speech has value over the copy paste piracy concerns of copyright interests. The 1201 exception inherently requires an assessment of the value and impact of fair use speech that the librarian of congress thinks will come of the exception.

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    • icon
      James Burkhardt (profile), 12 Jul 2019 @ 12:41pm

      Re:

      Regardless of whether the process suppresses disfavored speech (which it can, that is why Dr. Green can go forward with hiss case), it suppresses speech undeniably, which seems to be the standard the SCOTUS and the first amendment puts forth.

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      Vanna T. Webb-Sight, 12 Jul 2019 @ 12:48pm

      Re: Dr Mengele was/is prohibited from publishing his research...

      The court has accepted that SEC 1201 has negatively Dr. Green's ability to publish a book research, that he

      You can't commit other crimes solely because want to publish a how-to. That's just silly. Gadgets are a little less protected, but there is sound principle.

      has reached the bar necessary to show the potential for injury that could have been bypassed by allowing for standard academic fair use exceptions.

      That's not true. Court is reluctantly agreeing MAYBE can do that. My bet is to stamp out further attempts on this line of argument.

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        James Burkhardt (profile), 12 Jul 2019 @ 1:21pm

        Re: Re: Dr Mengele was/is prohibited from publishing his researc

        You can't commit other crimes solely because want to publish a how-to. That's just silly. Gadgets are a little less protected, but there is sound principle.

        Its not a how-to it is a research paper on the mechanisms currently being employed, but regardless, this ruling here is that he has reached the minimum bar to show a potential of harm, so that an actual trial can occur. Meaning that the 'crime' might not be a crime. My entire point was that I can't see how you can reach that conclusion without concluding that the law might be unconstitutional.

        That's not true. Court is reluctantly agreeing MAYBE can do that. My bet is to stamp out further attempts on this line of argument.

        If the court wants to 'shut down' arguments that SEC 1201 has first amendment implications, the best route would be to take up the argument that SEC 1201 implicates the first amendment and make a ruling. By dismissing the claim on the basis that Dr. Green doesn't establish the necessary harm, it leaves open the possibility that a future plaintiff will. And my point was not that the court ruled that Dr. Green was in the right. As you quoted:

        has reached the bar necessary to show the potential for injury that could have been bypassed by allowing for standard academic fair use exceptions.

        Emphasis mine. I noted that the court did not rule that there was harm, that happens at a trial. I instead noted that the court ruled there was a reasonable evidence that taken in the best light could establish harm and so the case can go forward. Again, I don't see how the court could say that the SEC 1201 lockout could cause harm on the basis of restriction of speech and still claim that the SEC 1201 process doesn't have the general potential for restriction of speech that should be examined by the courts.

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        • icon
          James Burkhardt (profile), 12 Jul 2019 @ 1:26pm

          Re: Re: Re: Dr Mengele was/is prohibited from publishing his res

          I managed to express myself so much better arguing with the troll, and then screw up the markdown. Oi.

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      • identicon
        Anonymous Coward, 12 Jul 2019 @ 1:45pm

        Re: Re: Dr Mengele was/is prohibited from publishing his researc

        “You can’t commit other crimes solely Becuase you want to publish a how to”

        Congress:yeah man only I can do that😁

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      • identicon
        Anonymous Coward, 12 Jul 2019 @ 2:18pm

        Re: Re:

        You can't commit other crimes solely because want to publish a how-to. That's just silly. Gadgets are a little less protected, but there is sound principle.

        I'm allowed to make a backup of any CD/DVD/video game/etc... that I own. That is established in law, it literally says I can do that, regardless of whether it is protected by security measures/DRM. 1201 says I can't circumvent those measures to make my backup. So do explain how the hell I'm supposed to obey all the laws in this scenario to make my legally protected right to a backup?

        That's not true. Court is reluctantly agreeing MAYBE can do that. My bet is to stamp out further attempts on this line of argument.

        Your bets are never right and never will be.

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        • icon
          Gary (profile), 12 Jul 2019 @ 8:36pm

          Re: Re: Re:

          I'm allowed to make a backup of any CD/DVD/video game/etc... that I own. That is established in law, it literally says I can do that, regardless of whether it is protected by security measures/DRM. 1201 says I can't circumvent those measures to make my backup. So do explain how the hell I'm supposed to obey all the laws in this scenario to make my legally protected right to a backup?

          You are not legally entitled to make a backup under the DMCA if the sourse is encrypted and copyrighted.

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      • identicon
        Anonymous Coward, 12 Jul 2019 @ 5:49pm

        Re: Re:

        Remember when you bet that Prenda would win?

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      • identicon
        Anonymous Coward, 12 Jul 2019 @ 8:38pm

        Re: Re: Dr Mengele was/is prohibited from publishing his researc

        The you should not have made it s crime in the first place so you could screw over your legal customers another way then huh?

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    • identicon
      Anonymous Coward, 12 Jul 2019 @ 1:50pm

      Re:

      This raises another interesting issue... let's say that Green did indeed get a 3 year exemption, and so wrote and published his book. Let's say that after 3 years, he had moved on to other projects and so didn't petition for the same exemption.

      So now what happens? He's already written the book, it has already been printed and published -- and sold.

      I presume it is now de facto illegal for the publisher to do another run of the books. But is it also illegal to possess the book when transiting the border? To sell the book? To have it in a library where it will be lent to others?

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      • icon
        James Burkhardt (profile), 12 Jul 2019 @ 1:58pm

        Re: Re:

        Yeah, I'd thought of that one, though I was fighting a time window. The court has strangely ruled that the 1201 restrictions potentially burden protected speech in a manner the courts should adjudicate rather then go through the exemption process, but that the court sees no reason the next researcher shouldn't just go through the exemption process. If the exemption process is an undue burden on speech that should be bypassed and the court resolve in Dr. Green's case, it should be in any similar case and so the process needs to be reviewed. If it is not an undue burden, there is no harm and Dr. Green should use the exemption process, not the courts.

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  • icon
    That Anonymous Coward (profile), 12 Jul 2019 @ 1:39pm

    Microsoft recently decided to shut down their ebook server which rendered purchased material unuseable.
    The price paid did not reflect its ephemeral existence.

    Now this portion of the law says that if you were to decouple the ebook from the defunct DRM system you are committing a huge crime. Isn't it a larger crime to entice people to 'purchase' ebooks & then later decide the DRM is costing to much to keep functioning & take the purchases away.

    Copyright is completely lopsided because Congress has been convinced that the public not only needs to issue exclusive rights for a limited time (which now is the heat death of the universe) but the rights to shift the burdens & costs of protecting those rights unto everyone else. We no longer get any real benefits for granting these rights, as the corporations begin to demand the rights to say where, when, how you can enjoy content you 'purchased' up until its more beneficial to claim it wasn't a purchase so they can take away the content & demand you 'purchase' it again at the full price and still have only the rights they decide to allow you to have until they decide you should pay them again.

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    • identicon
      Anonymous Coward, 12 Jul 2019 @ 1:55pm

      Re:

      Actually, I believe since these books are "electronic", this particular example falls under one of the exemptions that is still being renewed every three years.

      Of course the other thing here is that there's no law against sending your DRM'd books to somewhere not restricted by the DMCA, have THEM strip the DRM, and send you back a copy with no DRM. The only potential issue here is that it may be that your license to possess the work requires that the DRM be left in place.

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  • icon
    Rico R. (profile), 12 Jul 2019 @ 2:11pm

    In my mind, the first amendment claims against whether or not the DMCA section 1201 is unconstitutional was a strong, but perhaps not the strongest argument. Consider this initial text from the statute itself:

    No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

    Now compare that to the copyright clause of the US Constitution:

    (The Congress shall have power) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

    The very purpose of copyright, according to the US Constitution, is to promote the progress of Science (which means knowledge in this old context), and by extension, promote creativity. Riddle me this: How does a law that stops people from bypassing technological measures that prevent access to copyrighted works further the cause of promoting progress?

    Not only does it sound like it doesn't on its face, but it as it has been applied since its enaction, there is ample evidence that it, in fact, hinders the progress and creativity that copyright law is supposed to foster. Apple has used it to stop people from tinkering with iPhones (Jailbreaking, unlocking, etc.) and used the law to sue Psystar into oblivion. It stops press publications from publishing code that can be used to bypass CSS on commercial DVDs. (Never mind the fact that CSS is extremely insecure by today's cryptography standards, but the law says that we shouldn't even know that!)

    In private homes, it makes it illegal for people to space-shift physical media, or to build a Hackintosh. And it even causes DRM to be installed in contexts that have nothing to do with copyright protection, and therefore, it makes you a criminal from doing seemingly innocent, non-infringing activities (a security update preventing you from installing a competitor's ink cartridge in a printer, car manufacturers preventing you from repairing the computerized components in your own cars, etc.)

    All it does it make non-infringing activities illegal while doing nothing to stop actual piracy. Almost every broken up piracy ring I've heard about was taken down for criminal copyright infringement and NOT for circumventing TPMs, even though said infringement couldn't have happened without circumventing TPMs. Furthermore, all case law stemming from DMCA section 1201 has nothing to do with actual piracy of that nature.

    I even asked Cory Doctorow about this in a Reddit AMA about the lawsuit, and he pretty much said that while he wasn't a lawyer, he speculated it had something to do with the decision in Eldred v. Ashcroft and how subsequent developments made them decide NOT to raise constitutional objections to the law in that regard.

    My own opinion though is that those cases were looking at the part regarding "securing limited times to authors... to have the exclusive right", but here, the case is turning on the part regarding the promotion of "the progress of science". Furthermore, had these plaintiffs raised this objection AS WELL AS the first amendment objection, we might be looking at a different story here. I just hope that if a future plaintiff comes along and decides to raise similar objections in this case with more proof of harm, they also turn to this question. Worst case scenario, the Court holds that it's again too similar to Eldred v. Ashcroft and dismisses the claim. We can only wait and hope at this point!

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    • identicon
      Anonymous Coward, 12 Jul 2019 @ 2:31pm

      Re:

      Here's another question: how does the DMCA locks clause and limited 3 year exemption square with "securing limited times to authors"?

      Seems to me it does the opposite: the author of anything protected by TPM has time-unlimited ownership except where the LoC grants a temporary exemption for a specific purpose. So even after a work goes in the public domain, if it's protected by a TPM, only the rights holder of the TPM key has access, and breaking that lock to access the material in the public domain is a criminal action.

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      • identicon
        Anonymous Coward, 12 Jul 2019 @ 2:37pm

        Re: Re:

        I missed the crux of my point there: by LoC giving out time limited exemptions, they not only negate the "limited times" part of their mandate, but are also directly controlling free speech by dictating who, and for how long, can distribute that speech, outside the framework already set down in the copyright act (which, among other things, allows for free speech to avoid government control of speech issues).

        Someone needs to make a logic graph starting from the original constitution and following down through the 1st amendment, copyright, and the DMCA, to expose the areas where the current situation is unconstitutional, and the many areas where it isn't. That may stop some people from conflating or confusing the two.

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

      • identicon
        Qwertygiy, 12 Jul 2019 @ 2:50pm

        > breaking that lock to access the material in the public domain

        Actually, that is not the case, as I would read it. Once the work is no longer copyright-protected, it is no longer a crime to break the DRM of that work.

        Note that the DMCA clause states:

        No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

        (Emphasis mine.) A work unprotected by the DMCA, such as one that is in the public domain, would no longer be protected under the DMCA.

        However, I would imagine you still would have significant difficulty learning how to legally circumvent your DRM, because publishing information about how to technologically circumvent the DRM would also be publishing information about how to technologically circumvent the DRM of other, still-protected works. That is what this case is about.

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

        • identicon
          Anonymous Coward, 13 Jul 2019 @ 8:17am

          Re: > breaking that lock to access the material in the public

          Actually, that is not the case, as I would read it. Once the work is no longer copyright-protected, it is no longer a crime to break the DRM of that work. Note that the DMCA clause states: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

          That can be interpreted even more broadly than you've stated. It doesn't say you can't circumvent a technological measure on a protected work, it says you can't "circumvent a technological measure that effectively controls access to a protected work". If the same measure controls access to many works, at least one of which is protected, arguably it's still illegal to circumvent it anywhere.

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

  • identicon
    Anonymous Coward, 14 Jul 2019 @ 9:43pm

    Since that came in from the WIPO treaty, that would override the first amendment. If a law is passed to implement a treaty, Congress can piss on the constitution to do it.

    That is why there was such a push for ACTA and TPP. It would have given Congress license to piss on the consititution on making copyright laws.

    International treaties do override the constitution

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

  • icon
    qmp-global (profile), 17 Jul 2019 @ 3:52am

    video prodution Company Bnagalore

    very nice information. keep posting.
    www.qmpglobal.com

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

The Last Word

It depends on what meaning of "prevent a person from speaking" you are referring to.

If you mean "rendering the person incapable of producing such speech", yes, that is generally not allowed, as it would involve violating my right to travel freely, my right to maintain good health, and my right to not be presented with an unequal punishment to the crime committed. (And possibly my right to remain alive. Mouths are kind of important.)

If you mean "threatening a person with punishment if specific speech is produced by the person in the future", that is allowed in limited circumstances. Lawyers can be ordered not to reveal the identity or location of a witness, plaintiff, or defendant. Defendants can be ordered not to contact another individual, such as with a restraining order against harassment. Companies and agencies can be ordered not to publish personal information about people using the company or agency.

If you are referring to the ability of DRM to prevent the copying of material, that is something more akin to putting a lock on your bike so that nobody can steal it. If the lock is crappy, it won't stop someone truly motivated from getting past it. If the lock is really crappy, it might keep you from being able to access your own bike without breaking it -- and perhaps the bike along with it.

Of course, the law allows for that lock to be legally bypassed by regulated professionals, who in many states must reapply for certification every, oh, three years or so...

But the law also allows for that lock to be legally bypassed by yourself, since you own it and can do what you want to it, even if what you want to do to it (such as "taking a chainsaw to the stupid piece of %@$^") may not be in line with the intentions (or financial interests) of the manufacturer.

That part is where the DMCA's take on DRM is very problematic, and one reason why I hope that right-to-repair laws continue to gain traction.

—Qwertygiy

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