1) DMCA 1201 is "treaty implementing legislation" for the WIPO agreements. Repealing it entirely is unlikely without getting that fixed -- but we (the United States) are the ones who actually wanted that crap in the treaty to begin with, so if the executive is behind scrapping it, pushing for that to happen internationally would be a big win. In the meantime, fixing the law so that circumvention-without-infringement is never illegal would still be a great improvement even if we can't be rid of the whole thing immediately.
2) There are two relevant parts to DMCA 1201. The first is that circumvention is prohibited. This is the thing the Librarian of Congress currently is allowed to create exemptions for. The second is that circumvention tools are prohibited. The exemptions the Librarian makes apparently don't apply to this -- if we're doing some reform, it really ought to exempt tools with a "substantial non-infringing use." This is the thing that prohibits Walmart from selling e.g. a DVR-like device that allow you back up all your DVDs and stream them to your phone whenever you want. There is a serious amount of innovation that doesn't happen because of the lack of that exemption.
> The second is that circumvention tools are prohibited.
I don't think "substantial non-infringing uses" should be a standard for tools. These tools are not infringing at all. They do not contain or distribute copyrighted content themselves. In fact they can be small keys, or information tangentially related to the DRM scheme. They can also be various things in various contexts.
I think the entire "anti-circumvention tools" part should be removed, period. It's not even helpful for its original purpose and probably unconstitutional (the government cannot criminalize instructions for violating the law). It's also being abused.
Keys do not always have "substantial non-infringing uses" by the way. They can be unique enough to skate the line. And tools which address a general type of DRM (enormous research value) would also be criminalized, which would not meet that standard if the tools were explicit enough.
Hell, if I released the circumvention tools for my own DRM (intended to allow others to access the protected content) I would be violating that standard.
Maybe you're right about the treaty re: circumvention tools. I don't see it either.
>Keys do not always have "substantial non-infringing uses" by the way.
I think fair use should be a substantial non-infringing use. The phrase comes from Sony Betamax, right?
>Hell, if I released the circumvention tools for my own DRM (intended to allow others to access the protected content) I would be violating that standard.
How so? Accessing protected content with the copyright holder's permission is not infringement, so there's your substantial non-infringing use.
"Substantial non-infringing uses" is the standard the court set for things which could subject you to "secondary liability" for acts of infringement. The tools are legally separate concepts (which is why the DMCA codified them), and the first amendment traditionally prevents the government from criminalizing speech which could assist others in breaking the law.
I didn't waive my copyright just because I released circumvention tools for my own DRM scheme.
>I didn't waive my copyright just because I released circumvention tools for my own DRM scheme.
So your scenario is that you wrap your work in DRM and you release a circumvention tool without giving anyone permission to use it to copy your work and it doesn't have any other substantial non-infringing uses (e.g. can't be used for any substantial fair use). I'm no fan of the prohibition on circumvention tools, but I don't think that's the scenario that worries me. A party doing that looks to be engaged in some kind of entrapment scheme.
>"Substantial non-infringing uses" is the standard the court set for things which could subject you to "secondary liability" for acts of infringement. The tools are legally separate concepts (which is why the DMCA codified them)
I understand that it isn't the standard that applies to circumvention tools right now. But it seems like an exemption that ought to apply if the prohibition on circumvention tools is to stand at all. And amending the law to that effect is likely going to be a lot easier politically than repealing the prohibition in its entirety. Can you suggest some other language that would be preferable? (I mean obviously "get rid of it altogether" would be preferable.)
> the first amendment traditionally prevents the government from criminalizing speech which could assist others in breaking the law.
I think they addressed this in the 2600 DeCSS case.[1] Something like: Code is speech, but it's also functional, and you lose the First Amendment argument on the functionality. Which I'm not really convinced of the logic of (isn't all speech "functional" in that it provides information that allows you to do something with it?), but that's apparently the counterargument you'll get.
It's great but the only people who it would speak to are technical people. If you started with the section on blind people, then security researchers, then go into detail about other things like getting apps from an app store first, you'd appeal to more people. And if I studied english more I'd have learned how to write that without a run-on sentence.
But it's tied together with the requirement to block access on receipt of a takedown notice, which is precisely what gets abused so often. I think this provision is a case of the "cure" being worse than the "disease".
(Btw, I'm not sure how much of a "disease" there would be in the absence of this provision anyway. Internet providers could defend against accusations of copyright infringement by pointing at their terms of use, assuming they were smart enough to have them and make customers agree to them, as pretty much all of them are.)
Because you are still contributing. The DMCA is the only thing that provides the safe harbor to prevent this claim. It's the only good part of the law.
The DMCA is the only thing that provides the safe harbor to prevent this claim.
Is this really true? Is there case law pre-DMCA that showed that website owners or ISPs were being forced to pay large judgments for copyright infringement even when they showed that the infringer had violated their terms of use?
I understand that without the DMCA, the claim could still be made, and that it might cost a website owner or ISP quite a bit of money to defend it in court. But that's more a sign of how broken our court system is than anything else; the way to fix that is to raise the penalty for frivolous lawsuits. "Loser pays" would be one way to do that.
Agreed! It was a mistake when it was passed, and all the bad things people said about it then have proven to be true. Alas that it is so hard to get bad laws repealed - Congress will sign up for these enormous piles of crap in a hurry, but then it's the work of decades to get just a few of the very worst details rolled back. (The patriot act and homeland security act come to mind.)
This is a start, but what you guys really need to do is author specific legislation and then lobby to get a few sponsors to introduce it. Once you have identified a few potential sponsors, we can focus our efforts into lobbying them, ad once it is introduced, we can lobby the rest of Congress to pass it.
We built this in 72 hours while on a bus going from San Francisco to Austin on terrible cellular connections and running on 9 hours sleep in total (StartupBus). Please help us debug. If you see CSS/JS that needs changing, tell me and we'll get it done immediately.
Some of the individual sections are large enough that they don't fit on a single screen and navigating by clicking the down arrow on the bottom bar always skips to the next section even if you haven't viewed the entirety of the current section yet. Also, the bar disappears when you get to the last section before the "write congress" section, even though that bar is what has the "write congress" button on it.
One known issue is rendering on iPad and iPhone. If anyone can figure out how to fix it, I'd be very happy. Tried, but there are bills being brought to Congress as we speak and we needed to get this up.
Might have something to do with it. Your HTML/BODY tags are not allowed to extend to 100%, forcing your body/html to max at 720. Not allowing your "gray background" to extend 100%
It looks like there's a misplaced space in "thea nti-circumvention provision of the DMCA", part of the text of the email you're sending on visitors' behalfs.
You can test for the same effect by resizing your browser and scrolling right. Body width is the viewport width by default, and the bug happens when the viewport is smaller than the page dimensions.
A very valid argument, however nothing on the current DMCA Takedown Notice provisions enforced upon "Online Service Providers" (aka pretty much any service, platform or ISP which makes content available online)
That seems like an area which is worth addressing as well, at least in passing, and there are plenty of examples of abuse hanging around.
We don't need a set of permanent exemptions, we need to repeal the anti-circumvention provision. Not the whole DMCA, although there are other parts that could use adjustment. This provision stifles innovation all over the place and I seriously doubt it has any significant impact on piracy, which was it's original intent.
Circumventing the security measures that protect them is illegal under the DMCA, even though it's not actually copyright infringement. Section 1201, the circumvention provision, is specifically what we're trying to get fixed.
It is not illegal when it's fair use. But this DMCA section shifts the burden on those who break the DRM (i.e. to prove that something is fair use) instead of keeping the burden on those who should prove that certain action is not fair use.
I'm not disagreeing with you, but asking for my own edification.
I can't find (or am misinterpreting what I can find) in the DMCA that makes it legal for fair use.
The main portion I'm trying to interpret is 17 USC S 1201 (a) (1) (A):
"No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter."
I'm not finding another section that creates a fair use section. Does the phrase "protected under this title" create the fair use exemption? Or is there some judicial precedent that I'm missing?
I think fair use makes it legal point blank. DMCA can't override it (DMCA contradicts fair use directly). But this can be open to interpretation by judges and etc. - would be good to hear some clarification from experts.
It is legal under fair use, however DMCA makes it guilty until proven otherwise. I.e. you'll have to defend your fair use. Forget the presumption of innocence. The fix will reverse the things to how they are ought to be, and even more - will simply make any circumvention legal, which it should be. It's redistribution without permission that is illegal, not the circumvention.
Nice, but the DMCA needs more reform than that. There is a severe imbalance in the fact that parties who feel that they have been infringed can serve financially disastrous take-downs that must be complied with immediately. The only recourse for served parties is a long expensive legal process.
Something needs to be done to bring this into balance.
> Nice, but the DMCA needs more reform than that. There is a severe imbalance in the fact that parties who feel that they have been infringed can serve financially disastrous take-downs that must be complied with immediately. The only recourse for served parties is a long expensive legal process.
This is demonstrably false. The first line of recourse is counter-notification, which reinstates the content.
>The first line of recourse is counter-notification, which reinstates the content.
Sec. 512(g)(2)(B): "upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days"
What can the victim of the fraudulent takedown do for those 10 days? Maybe go to court (I have no idea), but if so that certainly sounds like "long expensive legal process" to me, and if not then it's even worse because there is just no recourse at all.
I think most providers process counter-notices faster than 10 days. Also keep in mind that before the DMCA you'd have received a lawsuit instead of a takedown in the first place.
>Also keep in mind that before the DMCA you'd have received a lawsuit instead of a takedown in the first place.
I kind of doubt it. Filing a fraudulent lawsuit requires finding a lawyer who is willing to risk getting disbarred and putting yourself in front of a judge with the power to impose serious punishments for misbehavior. Filing a fraudulent takedown notice can be done by any jackass with an internet connection and you only get punished if the victim has the knowledge, will and finances required to hire a lawyer and go after you.
Who says that they'd all be fraudulent? I'd bet that there are more valid DMCA requests submitted than invalid. Sites like youTube would be buried in lawsuits.
The fact that the user in question by stipulation hasn't posted any infringing material. We're not talking about the effect on intermediaries.
Obviously if there were no safe harbor at all then the intermediaries would immediately cease to exist and the internet as we know it would disappear, probably to be replaced by something resembling The Pirate Bay.
Oh, that's good. Why do we have lawsuits in general then? I'd bet more guilty people are prosecuted than innocents. Let's make the economy of the judge's salary and assume everyone is guilty.
Aware of this, but one battle at a time. Right now there's momentum towards getting anti-circumvention fixed because of the WH petition, we want to broaden the scope somewhat, but not unrealistically.
1) DMCA 1201 is "treaty implementing legislation" for the WIPO agreements. Repealing it entirely is unlikely without getting that fixed -- but we (the United States) are the ones who actually wanted that crap in the treaty to begin with, so if the executive is behind scrapping it, pushing for that to happen internationally would be a big win. In the meantime, fixing the law so that circumvention-without-infringement is never illegal would still be a great improvement even if we can't be rid of the whole thing immediately.
2) There are two relevant parts to DMCA 1201. The first is that circumvention is prohibited. This is the thing the Librarian of Congress currently is allowed to create exemptions for. The second is that circumvention tools are prohibited. The exemptions the Librarian makes apparently don't apply to this -- if we're doing some reform, it really ought to exempt tools with a "substantial non-infringing use." This is the thing that prohibits Walmart from selling e.g. a DVR-like device that allow you back up all your DVDs and stream them to your phone whenever you want. There is a serious amount of innovation that doesn't happen because of the lack of that exemption.