Bill Introduced To Fix Broken DMCA Anti-Circumvention Rules
from the but-will-it-get-anywhere dept
It’s no secret that the DMCA’s section 1201 is extremely problematic. It’s the “anti-circumvention” part of the law, that makes it illegal to circumvent “technological protection measures” even if it’s for non-infringing purposes. This is a mess — especially in an age of DRM trying to lock up everything. Try to get around it, and it’s a violation of the law — even if you’re not trying to infringe on the underlying material. This is why Cory Doctorow is running a new effort to eradicate DRM with a target placed firmly on Section 1201.
So it’s great to see Senator Ron Wyden and Rep. Jared Polis team up to introduce a bill to try to reform Section 1201. The full text of the bill (called the “Breaking Down Barriers to Innovation Act of 2015”) has a lot of good things in it. It says that circumventing DRM or other technology protection measures for non-infringing reasons should no longer be considered against the law. It also expands other exemptions for things like security research and testing and reverse engineering. It also would automatically renew the exemptions the Librarian of Congress issues every few years so we don’t have a repeat of the mess from a few years ago where the Librarian of Congress used the “triennial review” process to first grant an exemption to 1201 for unlocking mobile phones… and then to take that exemption away six years later.
Overall it’s a good bill — and I’m curious to understand how anyone could possibly push back on it, though Hollywood absolutely refuses to consider any changes to Section 1201. Unfortunately, it also seems unlikely that the bill has enough support to actually go anywhere. It seems a bit telling that Wyden released this bill the same day as the fast track bill, suggesting that it’s a signal of some sort to people that he’s not giving up on fixing copyright law. It’s unlikely, however, that this gesture will mollify the folks who are upset that Wyden allowed the fast track bill to move forward in its current form.
Filed Under: 1201, anti-circumvention, copyright, dmca, dmca 1201, exemptions, jared polis, ron wyden, technological protection measures, triennial review
Comments on “Bill Introduced To Fix Broken DMCA Anti-Circumvention Rules”
I’m curious to understand how anyone could possibly push back on it
You actually want the only way that rights holders have to protect their property taken away?
That’s how it will be pushed back against. Is it a good argument? No, but pay enough and people in congress will agree with it.
Even if it somehow becomes law, it won’t matter because the TPP ensures that anything that triggers Chris Dodd is illegal.
Wyden continues to ensure I will continue to vote for him in the next election.
Re: Re:
Since it’s likely a dead bill anyway, I wonder if he’s making a political move to try to head off Internet outrage at his TPP hack job.
1201 time?
I gather by the posting of multiple articles attacking 1201 in different ways this week that this is the new Techdirt Agenda play. How transparent.
The bill in question SOUNDS wonderful, but it opens up a can of worms. In particular,you hit the question of “non-infringing purposes”. As an example, ripping a game or DVD or whatever that has DRM, and putting it on your own hard drive would appear to be okay. What if you upload it to a “backup” service? What if that “Backup” service allows others to access you files? At what point did it becoming infringing?
What happens if your “non-infringing” backup gets put on your network share drive, and your roommates or family members take a copy and share it with their friends. At what point was it for a non-infringing purpose?
Further, it would be clear that this change would make “ripper” tools entirely legal (ie, they would not be against 1201 because there would be “non-infringing uses”). Yet clearly, people would use these tools to rip stuff and put it on torrents or otherwise “infringe”. What a change to 1201 would do would be to tip the balance that currently exists.
Wyden as always is really good at hopping on the bandwagon with things like this, introducing ANOTHER bill that clogs up the congress with unpassable legislation. There is little indication of wide bypartisan support for such a bill, if anything the US generally wants to protect IP and not make it many times easier for casual infringement to become the norm.
Re: 1201 time?
The VCR had clear, and known, infringing uses when the supreme court ruled it was legal technology. We still have them
Re: Re: 1201 time?
Yes, and SCOTUS made that ruling without knowing the implication of a thing called “internet” and “perfect digital copies”. It was a narrow victory for the VCR, but it is pretty clear that in the current circumstances, the decision would have swayed the other way. What saved the VCR was basically the degrading copies, that a copy of a copy wasn’t the basis of widespread copyright violation. With perfect digital copies, the infringing uses of a VCR style device is much more widespread, and the courts decision could very likely have gone the other way.
There are very, very, very few instances where the restrictions in 1201 get in the way of meaningful work. Security experts are perhaps the exception, but that is still a fairly narrow concept that doesn’t require throwing out the baby with the bathwater to fix.
Re: Re: Re: 1201 time?
There are very, very, very few instances where the restrictions in 1201 get in the way of meaningful work.
Citation needed.
Re: Re: Re:2 1201 time?
Umm,more like “citation needed” to show how this is getting in the way. I don’t see very many, except for hackers upset that they can’t break into something… the security types I can understand, but the rest? Not feeling it. So Citation needed for really good uses that merit such a widescale change to the 1201 protections.
Re: Re: Re: 1201 time?
Your definition of “meaningful” is pretty suspect.
For one, I have never seen work produced by an author after he kicked the bucket despite the fact that he hold onto the copyrights as a corpse. You, on the other hand, consider this scenario meaningful.
Re: Re: Re:2 1201 time?
Philip K Dick. All the movies produced after his death. Careful curation and control by the rights holders his incredible trove of stories from being pillaged and plundered in a very short period of time, and instead we have been treated to a selection of exceptional movies. Had the work gone into the public domain upon his death, it’s likely many schlock movies would have been made and killed the desire to make the stories into higher end movies.
Also, the “upon death of author” would lead to the inevitable BS legal defense of “I didn’t publish without permission, I read on the internet that he was dead”.
Re: Re: Re:3 1201 time?
“Public domain is shit”? That’s your excuse? Really?
Re: Re: Re:3 1201 time?
Hey, I can throw out hypothetical scenarios too. If we actually had sane copyright durations, such that things actually entered the public domain when they were still relevant, even if 90% of it was crap, that remaining 10% would still be a huge amount of excellent new works.
Also, the “upon death of author” would lead to the inevitable BS legal defense of “I didn’t publish without permission, I read on the internet that he was dead”.
At which point the status of the creator would be checked, and the defense either upheld if they were dead, or tossed if they weren’t. The ‘problem’ would be at most minor, and is hardly an effective argument.
However, you could solve that given problem fairly simply, with just two simple changes. Make copyright duration based upon publication date, so there’s absolutely no room for confusion, and require registration for a work to be covered under copyright(which would also solve various other problems like orphaned works). No confusion, as a simple check would allow people to know exactly when something entered the public domain, or if it was still locked up.
This would also have the not-so-minor benefit of making sure that anything created would make it to the public domain eventually, as it could be automatically released once the duration was over, and registration would mean that a usable copy would always be available.
Re: Re: Re:4 1201 time?
“that remaining 10% would still be a huge amount of excellent new works.”
The sentiment is nice, but an unproven concept at best. I am never a big fan of the strip mining mentality that seems to exist, hoping to find a gold nugget while ignoring the effects of the mining itself. The 90% crap figure you suggest is both painful and a whole lot of discouraging poor quality content to wade through.
“Make copyright duration based upon publication date”
Again, great sentiment, but the results would be the same: The copyright expiration would be extended to meet the requirements of the mouse and others, and thus the results would be the same as you have today.
Requiring registration to have copyright is wasteful, expensive, and creates an incredible amount of doubt in the public’s mind as to what is and what is not copyright. Today’s system is simple: Someone has copyright on it (even if it is a monkey). There is absolutely no doubt in anyone’s mind right now that a work is copyright.
Perhaps better would be a “public domain registry” where creators could register their work(s) as in the public domain and free of copyright. Such an official move would certainly be a lot more clear than the near endless variations of creative commons licenses that always seem to have some sort of hold back or hidden restriction in them.
Re: Re: Re:5 1201 time?
The sentiment is nice, but an unproven concept at best.
Gee, I wonder if that has anything to do with the fact that in the US at least, nothing enters the public domain, unless it’s well over a century old at the very least. Kinda hard to test how a more robust public domain would lead to increased works when it’s never allowed to grow, and certainly never allowed to grow with anything relevant to current culture. I suppose you could always look to other countries, but given how much the USG loves pushing it’s laws elsewhere in the interests of ‘harmonizing’ them, it’s just a titch difficult to find examples to look at with regards to how things might have gone with saner durations.
I am never a big fan of the strip mining mentality that seems to exist, hoping to find a gold nugget while ignoring the effects of the mining itself.
What ‘strip mining’ would that be exactly? If something is in the public domain, everyone gets to use it and create works based upon it. ‘Strip mining’ suggest that something is being lost, when in fact other than parasites who had nothing to do with the creation losing their monopoly rights to something, shorter terms and more robust public domains instead increases what is gained.
The 90% crap figure you suggest is both painful and a whole lot of discouraging poor quality content to wade through.
That ‘90% crap’ is going to happen regardless, whether there’s a lot of works being created, or only a few. By enlarging the amount of works created, while that does increase the amount of crap that gets created, it also increases the amount of good works that are created as well.
Again, great sentiment, but the results would be the same: The copyright expiration would be extended to meet the requirements of the mouse and others, and thus the results would be the same as you have today.
Which is why you stop extending the duration. If the terms offered were good enough when something was created, then there’s absolutely no need to extend them after the fact just because certain companies are feeling parasitic and/or don’t feel like competing with older works.
Requiring registration to have copyright is wasteful, expensive, and creates an incredible amount of doubt in the public’s mind as to what is and what is not copyright.
Did you miss the whole point about registration making it so people could easily check whether or not something was under copyright still, or if it had entered the mythical realm known as the public domain? That’s pretty much the exact opposite of creating doubt.
With regards to ‘wasteful’, if it will help deal with the orphaned works problem, where who knows how many works are basically sitting in limbo, because no-one knows who has the rights to them, and no-one feels like getting sued to find out, then that sounds like a good cost for copyright ‘ownership’ to me. Works languishing, with no-one to claim them, and no-one able to use them because of it, sounds quite a bit more ‘wasteful’ than some simple paperwork to me.
With regards to ‘expensive’, well, I keep hearing about how valuable copyrights are, how infringing, even accidentally, on one is grounds for massive monetary fines due to the immense ‘harm’ suffered by the copyright owners, and if they are so very ‘valuable’, then registering them, for a minor fee, should be seen as a worthwhile investment. Wouldn’t even need to be that expensive, a simple fee to cover filing costs should be sufficient, and given the benefits that being covered under copyright grants, a small fee to cover the paperworks hardly seems excessive.
Today’s system is simple: Someone has copyright on it (even if it is a monkey). There is absolutely no doubt in anyone’s mind right now that a work is copyright.
(Well except for the fact that no-one owned the copyright to the monkey selfie, despite claims by some to the contrary…)
Unless it’s an older work, or you don’t know who owns it, which makes it impossible to figure out when the copyright duration will eventually lapse, or you want to know who has the rights so you can contact them for whatever reason…
Unless of course you meant that due to the fact that nothing enters the public domain, ever anymore in the US, it’s safe to assume that everything is covered, in which case I might agree with you, though that still doesn’t solve the problem of knowing who has the rights to something, and when the theoretical expiration of the copyright term is.
Re: Re: Re:5 1201 time?
“Had the work gone into the public domain upon his death, it’s likely…”
“The sentiment is nice, but an unproven concept at best.”
I like how you just switch debate tactics 180 degrees depending on what will support your position at the moment. It helps demonstrate that you are saying whatever is necessary to support your agenda, not striving to arrive at a factual conclusion.
Re: Re: Re:6 1201 time?
horse with no name is a gutless, lying sack of shit.
Re: Re: Re:6 1201 time?
His agenda is to promote the gatekeeper mentality. They, and they alone, will decide what gets published, broadcast, or distributed. Nice!
Re: Re: Re:3 1201 time?
Yeah, nobody makes high-end Shakespeare productions or performances any more because it’s in the public domain now, right?
Re: 1201 time?
Moreover, the reduction of DRM has never once been shown to increase Piracy rates. DRM Free music? Everyone pirates the same amount. DRM-Free games? actually pirated less the the DRMed versions when released at the same time.
Re: 1201 time?
What a change to 1201 would do would be to tip the balance that currently exists.
I think you mean a balance that currently doesn’t exist. Removing the anti-curcumvention clause would likely have a minimal impact on piracy, at most.
Really, copyright infringement is already illegal, do you honestly think someone involved in it pays even the slightest bit of attention to DRM beyond removing it when it bothers them(a trivial task in pretty much every case as I understand it)? Heck, I’d be surprised if even a quarter of those engaged in copyright infringement even knew about the anti-circumvention clause at all, so I rather doubt removing it would have any effect on them.
The only people DRM screws over are legitimate, paying customers, pirates aren’t bothered by the infection in the least, so allowing people to strip DRM would be a great help to legitimate customers, while not affecting copyright infringers in the least.
Re: Re: 1201 time?
Shhhh. Whatever still thinks people fucked over by the Sony rootkit deserved it.
Re: Re: 1201 time?
Removing DRM isn’t always a trivial task.
There are some games where it seems there’s no one cracked (DRM removed) copy that works for everyone. For example, I wanted to get the game Alice: Madness returns. I was prepared to buy the game (at least a used copy) until I learned that it requires online activation. I refuse to pay for any game that comes with a digital leash attached to it. I own a legitimate copy of the original Alice game, but I’m not going to pay for the sequel and then have to ask EA’s permission to play it.
So I looked online for a pirated copy. They exist, but when you read the comments, they don’t work for everyone. Sometimes the game doesn’t work at all, sometimes a particular level doesn’t work, etc.
Re: Re: Re: 1201 time?
Removing DRM isn’t always a trivial task.
That’s because it’s a pain in the ass, not because it’s illegal. Making circumvention illegal has approximately zero influence on the difficulty of the circumvention itself.
Re: Re: Re:2 1201 time?
I never said there was any relation between the law and the difficulty of circumventing DRM. The OP said he understood that removing DRM was a pretty trivial task and I provided an example of why that’s not always so.
Re: 1201 time?
It’s not hard. Infringement is (or should be) a separate action from “circumvention.”
Re: 1201 time?
One assumes you’re in favour of repealing the 2nd amendment then?
The same argument applied even more so to firearms, which people use to kill and indeed are designed primarily for the purpose, or knives… or… well computers in general or really, pretty much anything at a stretch.
Re: 1201 time?
At what point did it becoming infringing?
Why does it matter, and what does this have to do with circumvention? What are you trying to say, that non-infringing activities should be illegal because it’s hard to determine whether they’re infringing? Should we do away with fair use too, because some things are fair use and other things are not, and it’s hard to tell sometimes?
Re: 1201 time?
You could make the exact same argument about DRM free music, such as MP3 files. Should DRM free music be illegal because someone might upload copies of it?
People have been using knives to kill other people since the beginning of recorded history. It’s the most commonly available murder weapon. Why aren’t they illegal?
Re: 1201 time?
Getting rid of the DRM provision in the DMCA would be analogous to repealing prohibition. Despite the illegality of it, people are still doing it regardless and massively so. It’s irrational to wax apocalyptic about allowing circumvention when it’s already pervasive. Chicken Little would be shocked by such alarmist statements.
Re: 1201 time?
Re: 1201 time?
It doesn’t open any cans of worms because CRIMINALS DON’T FOLLOW $&@#ING LAWS!!! If you’re pirating a game you probably don’t care about Section 1201 because you’re already infringing on copyright.
Also, if you’re downloading a copy that you don’t have rights to, it’s infringement. If not, it’s not infringement. Simple. Also, you’d have to be an idiot to use a backup service where anyone could look at your files, unless you’re expressly sharing the contents of your hard drive with everyone.
DRM is a failure. Full stop. It has been defeated by pirates, usually very quickly, because the designers of such a system believe they are smarter than the sum total of everyone who doesn’t like DRM. It has failed in “protecting” their IP and serves only to inconvenience legitimate users. Begone, shill.
It’s quite simple. If at some point the activity were infringing then at that point the circumvention (performed at an earlier point) would be in breech of 1201. While a bit awkward (but not without legal precedent), it makes more sense then prohibiting a legal activity based upon speculation that a later illegal action might possibly occur.
Empty words and useless gestures
Unfortunately, it also seems unlikely that the bill has enough support to actually go anywhere. It seems a bit telling that Wyden released this bill the same day as the fast track bill, suggesting that it’s a signal of some sort to people that he’s not giving up on fixing copyright law.
Maybe I’m just a little bit jaded by politics, but I’d say the fact that he sponsored both makes this particular bit of effort nothing but empty words with no other purpose than some good PR.
He’s sponsoring one bill(FTA) that, unless he hasn’t been paying the slightest bit of attention, he knows would completely negate the other. What does it matter if he proposes a bill that would remove the anti-circumvention aspect of the DMCA, when he has to know that doing so would undoubtedly be very much at odds with the corporate wishlist that is the ‘trade’ agreements after all?
If he hadn’t been one of those involved in pushing for FTA, I might have believed he was genuinely trying to fix the problem, but as it stands I doubt this is anything more than a cheap PR stunt.
Even as the law stands now, you have to be doing it for “commercial or private financial gain”, in order for it to be a felony crime, though I would imagine TPP will change that.
Even if they leave "all copying" in there, it's a big step.
The worst victims of 1201 abuse aren’t even the “circumvention but copy was fair use” situations where there’s some ambiguity on the copy.
This bill would fix the extreme bullshit cases of circumvention without a whiff of a copy. Like Lexmark (toner cartridge auth), Chamberlain (garage door opener interop), etc. Those are the real abuses of 1201, when the DMCA is pulled way out of the arena of copyright to try and prevent some integration. Since the 9th Circuit explicitly rejected Chamberlain in a case I know well (cough), this would mean you can finally sell Skylink garage door opener fobs in California without threat of a copyright (!?) lawsuit.
While it would be nice to codify that only infringing copies made after circumvention are violations, you can still sweep those under the rug and wind up with a very useful bill. It’s one which, as Mike notes, Hollywood should fight tooth and nail, even if it doesn’t affect their business model a bit.
Re: Even if they leave "all copying" in there, it's a big step.
It’s one which, as Mike notes, Hollywood should fight tooth and nail, even if it doesn’t affect their business model a bit.
Should, or will?
Re: Re: Even if they leave "all copying" in there, it's a big step.
I meant should in the pejorative. As in, “well, those asshats should be shooting themselves in the face any minute now”.
So, yeah, they will. 😉
Just today...
I went to play a (legally-purchased) DVD on a recently-installed HTPC running Linux only to run into the silly situation where it didn’t ship with decss capabilities.
After installing the “restricted” software by following directions I found on the internet, I still couldn’t get it to play. Then I tried to compile/install libdvdcss myself and it still doesn’t work. It says it finds the CSS key, but then fails on playback.
Why must something so obviously legal have to be such a headache as a result of this anti-circumvention law?
Most of my DVDs have been ripped and stored on the NAS – which simplifies finding and playing my collection of movies – but goddamnit if I don’t occasionally pick up a new DVD and want to watch it without format-shifting it first…
DMCA can’t be fixed.