
Fix the DMCA - sinak
http://fixthedmca.org?
======
AnthonyMouse
A couple of things:

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.

~~~
ewillbefull
> 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.

~~~
AnthonyMouse
>In fact they can be small keys, or information tangentially related to the
DRM scheme.

These sound like things that should have substantial non-infringing uses.

>I think the entire "anti-circumvention tools" part should be removed, period.

So then you need to fix the international agreements. Go for it. I still think
we should do what we can in the meantime though.

~~~
ewillbefull
Can you find the part of the WIPO treaty that requires anti-cirvumvention
_tools_ to be criminalized? I can't.

<http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html>

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.

~~~
AnthonyMouse
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.

~~~
ewillbefull
"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.

~~~
AnthonyMouse
>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.

[1] <http://en.wikipedia.org/wiki/Universal_v._Reimerdes>

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wheaties
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.

------
awwstn2
This campaign needs all of the support it can get. If you'd like to help,
please upvote on reddit:
[http://www.reddit.com/r/technology/comments/19sbuc/fixthedmc...](http://www.reddit.com/r/technology/comments/19sbuc/fixthedmcaorg_congress_please_fix_the/)

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pdonis
Why are we trying to fix the DMCA instead of just trying to get it repealed?
What parts of the DMCA are worth keeping?

~~~
SoftwareMaven
Safe harbor for Internet providers is a pretty important piece of it.

~~~
pdonis
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.)

~~~
darkarmani
Terms of use don't insulate them from contributory copyright infringement
charges.

~~~
pdonis
Why not?

~~~
darkarmani
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.

~~~
pdonis
_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.

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ensignavenger
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.

------
sinak
This is a bug thread.

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.

~~~
kenthorvath
This:

On October 28th, the Library of Congress decided to not renew an exemption for
carrier unlocking cell phones*

Should be changed as follows:

"decided to not renew" => "decided NOT to renew" =(or)=> "FAILED to renew"

at first glance, I misread it as "decided to renew".

Also, "Library of Congress" should be changed to "Librarian of Congress"

~~~
bjustin
"declined to renew" would be IMO better than throwing in an all caps word.

~~~
kenthorvath
Agreed, caps here to highlight the change.

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Pyramids
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.

------
aptwebapps
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.

------
Zikes
Aren't media backups, including DVDs, already legal under Fair Use? Is there
any legal precedent to the contrary?

~~~
sinak
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.

~~~
shmerl
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.

~~~
ncallaway
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?

~~~
shmerl
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.

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larkinrichards
Totally support this.

Also, Streem is listed twice as a supporter. Mistake?

------
largesse
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.

~~~
sneak
> 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.

~~~
AnthonyMouse
>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.

~~~
wmf
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.

~~~
AnthonyMouse
>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.

~~~
542458
> Filing a fraudulent lawsuit

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.

~~~
AnthonyMouse
>Who says that they'd all be fraudulent?

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.

