EFF Reviews 5 Years Under The DMCA

briaydemir writes "The Electronic Frontier Foundation (EFF) has a new report, Unintended Consequences: Five Years under the DMCA, detailing how the DMCA has stiffled competition, innovation, scientific research, and fair use. The original news release is here, and the report is also available as a PDF. Check it out if you want a good summary of all the DMCA cases over the past five years."

Time to go.

This article really shows why it is time for the DMCA to go. Anyone who happens to create any sort of device that someone figures out a way to use it to circumvent anything can be sued under the DMCA. (See also the Sklyarov incident.) Remember when someone discovered that you could use a Sharpie to circumvent the copy protection on a CD? Manufacturers/programmers/whatever should never be responsible for what anyone does outside the intended uses.

Re:Time to go.

**Manufacturers/programmers/whatever should never be responsible for what anyone does outside the intended uses.**

This is also the reason that gun manufacturers can't be held responsible for crimes commited with guns. If the intended use is hunting or self protection, then they cannot be held responsible for any other use. However, if there is reasonable evidence to suggest that the guns have a forseealbe intended use to commit crimes, the manufacturer can be held responsible. This is why the more powerful assault rifles and machine guns are illegal to be sold to civilians.

The same law should apply to digital technology. A hacking tool like a port scanner should be legal as it can have an intended use to check your own network for security holes. However, a trojan horse program is obviously intended for illegal remote access to a computer, and should be illegal.

Re:Time to go.

This is why the more powerful assault rifles and machine guns are illegal to be sold to civilians.

Untrue on its face.

• Machine guns are legal to own, just expensive to license.
• All rifles are assault rifles. Only a few specific rifles were banned.
• You can buy a .50BMG rifle if you want to.

Traditionally, a device is legal if there are significant legal uses.

Re:Time to go.

This is also the reason that gun manufacturers can't be held responsible for crimes commited with guns. If the intended use is hunting or self protection, then they cannot be held responsible for any other use. However, if there is reasonable evidence to suggest that the guns have a forseealbe intended use to commit crimes, the manufacturer can be held responsible.

I can foresee killing somebody by cramming 20 twinkies down their throat. Should we hold the manufacturer reponsible?

Really, I was almost tempted to not bother sending this because it's so obvious. Quite frankly there are too many people using that weak argument to make lots of money out of frivolous lawsuits. That's basically the reasoning being used to sue games developers, i.e GTA3.

Re:Time to go.

This is why the more powerful assault rifles and machine guns are illegal to be sold to civilians.

A civillian can purchase a fully automatic firearm provided he undergoes an FBI background check, gets fingerprinted, and pays the $250 per year license fee. It is perfectly legal (in the US) for any law abiding civillian to own a machine gun. It's been this way since 1934.

Even more to the point, the VAST majority of the firearms used to commit crimes are 6 shot revolvers. They were churned out like hoola hoops for about 60 years and are still plentiful and cheap on the black market. Banning firearms is no more about controlling crime than the DMCA is about stopping malicious copyright infringement.

A hacking tool like a port scanner should be legal as it can have an intended use to check your own network for security holes. However, a trojan horse program is obviously intended for illegal remote access to a computer, and should be illegal.

No program in and of itself should be illegal. It shuold only be illegal if one uses them in a manner that is, well illegal. You should be able to create any virus, trojan or system hijacker you wish, as soon as you use them on someone else's system is when you cross the line.

LK

Time to revise the DMCA

The DMCA was created in the spirit that new forms of electronic media were not safe from potential copyright violations, and the act did what it set out to do. Yet it also did a great deal more as special interests and corporate schmoozers managed to get their paws on the bill and turn it into more of a "dominant market player protection act" than anything else. We all agree that the amount of innovation stifled using the DMCA as justification is staggering. Yet electronic media should also be protected from the loopholes the bill originally solved. Here are a few potential solutions:

1) Remove the current DMCA and amend it such that only specific uses of media are prohibited. Allow for the use of back-engineering tools with HARSH punishments for people who knowingly use them to break copyrighted material with intent to distribute. This leaves the burden of proof with a prosecutors instead of the "guilty-til-proven- innocent" tactics of the RIAA et. al.

2) Make a specific statement for "loser pays": anyone suing under using this legislation who loses the case pays for the legal costs of both parties. Settlements don't count, and this will outright favor the bigger players, but in the American climate of "legal attrition" as a business strategy I see no other effective means of trying to relieve this aspect of the DMCA problem.

3) Allow publications on computer security to be done freely and thoroughly if tied to legitimate academic or corporate entities. Hold computer manufacturers liable if one of their components has a security flaw that causes eggregious commercial/monetary damage but which could have been fixed by repair of one of these published flaws.

4) Ensure that American laws apply only to American citizens with the express wording that products purchased in other parts of the world which belong to the consumer are theirs to do with as they please. A clause allowing rightful action to take whatever steps necessary to use that product would be nice (mod chips et. al)

Pointing fingers makes us feel good, but unless we propose alternatives and compromises, are we really doing anything but venting? Does anyone else have potential solutions/thoughts on how to resolve this issue?

Re:Time to revise the DMCA

Yet electronic media should also be protected from the loopholes the bill originally solved.

What loopholes?

It is illegal to distribute copies of works protected by copyright without the copyright holder's permission.

Nice and simple. It doesn't matter if you're distributing photocopies on the street corner and sharing them over a peer-to-peer client. It's still illegal. No loopholes.

Allow for the use of back-engineering tools with HARSH punishments for people who knowingly use them to break copyrighted material with intent to distribute.

But it's already illegal to distribute works protected by copyright. What will adding a another rule do to help? This is just hyper-criminalization, an amazingly bad idea.

Perhaps we need a law with additional penalties for disabling a home security system. Sure, it's already illegal to break into my home, but I don't feel safe enough. Surely a criminal who has decided to break and enter will be thwarted when he discovers that disabling my alarm system is illegal.

Allow publications on computer security to be done freely and thoroughly if tied to legitimate academic or corporate entities.

Lots of important security work is being done by loosely associated individuals. What's magic about working for an academic or corporate entity that makes the research more valid?

Pointing fingers makes us feel good, but unless we propose alternatives and compromises, are we really doing anything but venting? Does anyone else have potential solutions/thoughts on how to resolve this issue?

Yes, there are potential solutions. Repeal the law, it does way more harm than good. The benefits are miniscule and unworthy of protection. We already protect the rights of copyright holders.

Laws not thought out...

As was explained to me by a Lawyer who worked for Congress at one time, most laws are the result of knee-jerk reactions to public/corporate demand. Unfortunately, not much thought goes into the consequences of these laws. They just want to keep their jobs.

Another problem is that Congress makes some of these laws so vague as to leave too much interpretation up to the judges who try cases under these laws. Unfortunately, organizations such as the EFF don't have the clout or the resources that the corps do.

I have to stop now before I go on a rant ;-)

Re:Laws not thought out...

Unfortunately, organizations such as the EFF don't have the clout or the resources that the corps do.

And that's why they need all the support they can get! If you have any interest in this issue, please seriously consider donating to the EFF [eff.org]. Just think how much it would help if a fraction of slashdot readers donated $10 or $20. Of course when I donate to organizations like this I often wonder if the money gets squandered, but what's $10 in the grand scheme of things?

What I'd like to know...

What I'd really like to know is just how "unintended" some of these consequences were... *shrug*

Excessive punishments

One of the things that bothers me most about laws like the DMCA and the NET (no electronic theft) act is the excessive punishments they put in place for various violations.

For example, the DMCA makes it a felony to circumvent a copy protection device. And, similarly, the NET act makes it a felony to share copyrighted materials via a service like Kazaa with a possible 5 year prison term.

Regardless of whether the things out lawed by legislation like this really should be out lawed or not, the punishments really need to be adjusted to fit the crime. Neither getting your dvd player to play dvd's from europe, nor sharing the latest Eminem song should even carry the possiblity of landing you several months little less several years in the slammer. Okay, the Eminem case is iffy, but otherwise...

Deja Vu Anyone?

For those of you who seem to recall a very similar story but can't quite pin it down: your not crazy. The EFF revises their opinion on the DMCA every year, under the title "Unintended Consequences: X Years under the DMCA." I traced it back at least to 2 years ago, and there may have been articles previous.

They do make several good points, and I would go into more specifics but I really don't have time to read the new version (I read the older editions a year ago when I was investigating impacts of the DMCA for a research paper). An actual evaluation of the entire DMCA document is difficult especially due to the nature of Copyright law, Fair Use, et al, but the EFF does a good job, albeit a mildly biased one.

On a related note for those of you that have 30 seconds: support the EFF's newest petition -> "Take a Stand Against the Madness; Stop the RIAA!" [eff.org] Its a useful free alternative to being even more useful and donating to the cause [eff.org].

Steinway left Germany and came to America

. . . because they were in a dispute with the painter's guild. Steinway painted their pianos. The painter's guild claimed this as a violation of their guild rights.

Steinway said, "Fuck this shit" (Well, the German equivilent actually), and came to America. In the process making America the center of a cultural technology that had previously been a European monopoly.

America is making such inovative freedom illegal. It will reap the consecquences, just as did Europe.

The DMCA was written entirely to protect existing vested interests. When you do so you automatically restrict (even if that wasn't your intent) development of other interests that spur economic growth.

The end result is stagnation with all power and wealth gradually making its way into a few hands.

Welcome to the economic algae pond, Brother.

KFG

You'd think better of the EFF

What's with the use of the word "pirate" all throughout this document?

Congress meant to stop copyright pirates from defeating anti-piracy protections added to copyrighted works

Rather than focusing on pirates, many copyright owners have wielded the DMCA to hinder their legitimate competitors.

This document collects a number of reported cases where the anti-circumvention provisions of the DMCA have been invoked not against pirates, but against consumers, scientists, and legitimate comp-etitors.

The details of section 1201, then, were a response not just to U.S. treaty obligations, but also to the concerns of copyright owners that their works would be widely pirated in the networked digital world.

According to Blizzard, the bnetd software has been used by some to permit networked play of pirated Blizzard games.

The DMCA has nothing to do with maritime law. It was not enacted to protect cargo ships or the spanish armarda. "Pirate" is a propaganda term used by copyright owners to imply that unauthorized copying is the equivilent of murder and theft on the high seas. The message is clear: only a vicious enemy of the people would do unauthorized copying. To a lesser degree the term "protection" is also a propaganda term to describe what copyright owners do in restricting our freedom. These terms are an important weapon of people who support the DMCA and other stifling laws as they encourage informers to rat people out to the non-official police forces the copyright owners fund.

All in all, you'd think the EFF would be too smart to play their game.

Re:You'd think better of the EFF

I think that the ship has sailed, as it were, with regards to piracy being used to describe unauthorized copying and distribution.

The first recorded use of the word 'pirate' in regards to people who made copies of books without permission dates back to 1668. When there were the other kind of pirates as well. And decades before copyright laws came into being. Take a look in your convenient pocket-sized unabridged OED.

It _is_ a propaganda term -- if someone were trying to achieve the same effect today, they'd call infringers 'terrorists.' But it's such an ancient one that I don't think that there's much point in bitching about it now.

Alternate interpretations of DMCA

In an effort to discredit the DMCA, how about looking for ways that it can be misused? Here's a few examples:

• Crowbars should be declared circumvention devices and be banned, since they can be used to pry open a door which is protecting copyrighted material
• Airport x-ray devices can be used to see through solid materials and discover copyrighted materials within a briefcase, for example. Thus, x-ray devices circumvent a protection mechanism.

Any others?

Lets look at the positive side of DMCA

I for one am no advocate but here are some options for the creators of the DCMA when it gets pounded eventually, which are positive...

Create a boy band called DMCA then plit them up giving them all losing solo careers

Create a rap group RunDMC is taken but JogDMCA is available

Take the paper it was written on and donate it to public toilets

Team with R. Kelly and continue going after minors and morons

Give it to Blair or Cheney (forged of course) so they could start a war with China

Give it to Bush and tell him it's this year's economic stimulus package (he'll believe it)

Give it to Ashcroft so he could make a DMCA color coded warning system no one listens to

See there is more to the DMCA than you thought. And all along everyone was protesting... pffffft

The points EFF is trying to make...

The points they are trying to make are these: 1) DMCA is like Duct Tape... It works on anything, even for things its not intended to. 2) Congress became lazy when they had the DMCA drawn up, and left WAY TOO MANY Loose ends on it. 3) Something has to be done to revise/remove it until a decent Act is actually drawn up...

The law written by marketing idiots

You only have to look at the name to see what a stupid piece of legislation it is:

Digital - Now whats the point of calling it digital? its just a bandwagon jumping buzzword, well back in the late 90's it was all the rage digital this digital that always with the digital it just means fucking numbers! so by calling it digital they've restricted it to only digital systems. Macrovision on VHS is not digital, therefore it doesn't count, whoops. Now as much as i like that little mistake it doesn't mean its not stupid.

Millennium - WHY!??!?! WHY!??! WTF! WHY!? it wasn't even the millennium when the law was passed! What does it mean? What possible relevance does the millennium of 2000 have to do with copy-right law and circumnavigation of digital devices? Is it just another bandwagon buzzword?? At least digital was slightly relevant!

Copy-right Act - This isn't a copy-right act, its an anti-reverse engineering act, its an anti-industrial espionage act, its an anti-freedom-of-speech-if-it-might-hurt-a-company act. A copy-right act would use the phrase "You may not copy copy-righted work that you dont own" the only thing this says your not allowed to copy is circumnavigation software from other people.

This is the sort of naming i would expect by marketing people. Marketing people have no place in politics and legislation.

Remember, this was created by *Clinton*, mmmkay?

Before this discussion turns into the typical "I hate the US" and "I hate Bush" ignorant ranting, let me remind you "free speech as long as it doesn't offend" liberals that it was your boy, Clinton, who had the ultimate push in this.

So how can I use the DMCA?

Can I send a note to websites where I have accounts about unauthorized copying of my personal information to third parties?

Can I use it against adware companies that take data from my computer without my permission?

Can I use it against Microsoft when their software allows a virus to copy the contents of my address book around the internet?

civil disobedience

Laws really must allow the purchasers of equipment to do with them as they wish. The manufacturer is already protected through limited liability warrantees and traditional copyright laws. If I modify my computer, the manufacturer does not have to honor any applicable warranty. If I make a copy of book or music and sit out on a street corner and sell, or even give away copies, it is likely that traditional copyrights laws will allow for recompense.

The DCMA, with it's idea that I can purchase a piece of equipment and then not do it as I wish, or that I cannot make copies of books or music for personal use, is just immoral. It is immoral because it allows contracts in which the end user has to agree to terms that are unknown until the end user either cannot return the product of inadvertently breaks the contract. It is immoral because it prevents the necessary innovation that encourages the free market. It is immoral because it circumvents due process.

And we cannot allow immoral acts to continue. The best defense is peaceful civil disobedience. For instance, don't buy music from RIAA labels. If they have no income, they have no money to fight legal battles. The same goes for the MPAA, game vendors, and anyone else that uses the DMCA. It won't be possible to totally shut them out, but we can at least make an effort.

I believe a lot of what goes on P2P networks is copyright infringement, but what choice do we have. The music and movies are sold in packages that violates our traditional fair use rights under the law. If i can't make a copy of the CD for my car, and the manufacturer won't give me another CD when the original get stolen or damaged, then why should I buy the CD. The manufacturer obviously has no respect for me as a customer, so I might as well return the disrespect the manufacturer and copy the music off the net.

The same goes for movies. If movies are increasingly downloaded from the net, it won't be because people don't want to buy movies. It will be because the movies we can buy are illegally packaged to prevent out fair use rights. Why should I buy a movie that is crippled when I can download a copy that honors my fair use rights. The manufacturer may hid behind a license, but it makes no difference. A contract that removes legal rights, especially when the rights are not itemized, should not be honored.

Do you really think Congress cares?

Get real. Congress doesn't care about their constituants. All they care about is lining their own pockets! This is proven time after time after time. Congress hasn't cared about the people for decades! Why should we be surprised about the DMCA? Congress and big business saw digital as a way to TAKE BACK right that the people just assumed they were unalienable.
The irony is that all it would take is a couple of these clowns to be thrown out on their ever-widening asses because they put out a: "for sale" sign and the rest wuld be so scared shit about the gravy train pulling into the station they'd likely capitulate. But we know that just isn't going to happen. People have become so apathetic that they don't even bother to vote. Even Arnold who would be governor of CA doesn't!
I guess we do get the government we deserve though. Do nothing, and get nothing in return.

All the cases?

Check it out if you want a good summary of all the DMCA cases over the past five years.

Umm... EFF has skipped over all the $cientology cases, /. cases [slashdot.org], Scientology v. Internet Wayback machine [slashdot.org], Scientology v. Google [slashdot.org], Scientology v. /. [slashdot.org], Scientolog v. Ebay [slashdot.org], and so many more [chillingeffects.org]...

What unintended consequences?

The article mentions "how the DMCA has stiffled competition, innovation, scientific research, and fair use". Frankly I doubt the big media conglomerates that lobbied for the DMCA in the first place have the slightest problem with any of those consequences. If they didn't intend them, it was simply lacked the foresight to do so, not because they wouldn't have intended them if it had occurred to them.
When you're on top of the system, almost any change is seen as dangerous.

We shouldnt remove the DMCA...

Just fix it
Basicly, the 5 things that will fix the DMCA are:
1.removal of the "people can get info on who is using ISP accounts without going through the courts by alleging copyright infringment" clause

2.a change in the anti-circumvention provisions to make it clearer. (so it cant be used for crap, as we have seen in the past, particularly it should better cover things like DeCSS that have substantial non-infringing use and clearly spell out how it should be applied in these cases)

3.clearer wording of the "exemption for interoperability" part of the law to enable people to know just how far they can go (for example, does it cover the XBOX linux team who are trying to make linux interoperate with the XBOX? Does it cover the bnetd team who are trying to make bnetd interoperate with blizzard games? Does it cover the mplayer team who are trying to make their media player interoperate with thier legally purchased DVDs?

4.add an exemption like this:
The provisions of this law do not apply to someone who is creating a 3rd party clone of a physical object where that object is a consumable and gets used up in the course of its use and therefore needs replacement. (with a sutable defintion of what consitutes a "consumable")

and 5.generally re-write the law so there its a lot less open to interpretation

it is time

time to neuter the DMCA, i'll get the rusty impliments

This is what its *supposed* to do!

I don't like the law, but people who support the law will look at EFF's example's and say "Good! This is what we need to stop".

And so this will amount to nothing. I think the DMCA will hit home if/when people finally get their new HDTV plasma screen, their new HDTV VCR, and they press "RECORD" and it doesn't work.

Then they'll care.

But for now, to the public, this is all about "stopping those hackers who started that virus a few months ago"

DMCA

The best legislation money can buy.

It might all be worth it . . .

People forget that the DMCA provides ISP's with immunity to copyright suit if they take down the offending material promptly. It was essentially a negotiation where copyright owners agreed to give up their right to sue their most effecive point of control in return for getting protection against so-called black boxes.

IMHO (and I suspect I'm in the minority on this board), the Internet would be a far worse place without the DMCA. Without its protection, no ISP would allow individuals to post material - they simply could not take on the infringement risks. This ability, in turn, is what makes the Internet a unique medium.

Photocopiers

I've only read parts of the DMCA, so I'm not sure what all the requirements are, but I'm curious if the following scenario is possible.

Write some sort of copyrighted work on a computer. Since copying files on the computer is easy, use the following method as a copyright protection: make a hardcopy. That is, your copyright protection method is to print out a copy, and even put some copyright notice on the printed copy. Then, sue manufacturers of scanners because they create and distribute "tools" that can be used to circumvent your copyright protection method, i.e., they can make copies.

Sure, there's lots of problems with this lawsuit. There's lots of precendence in law on use of photocopiers and scanners, but I'd bet not under the DMCA. I'm not sure what the DMCA requires for "digital", but the argument here is that the work being copied is the digital file you originally wrote. The hard copy is just the "encrypted" version, and using a scanner allows someone to convert if from the encrypted version back into a non-encrypted digital version. I original thought of including photocopiers, but that would be just making copies of the encrypted files, not decrypting them, which as far as I know is ok.

True, hardcopying is not a very good copy protection scheme, but as far as I know the "quality" of the system is not considered. For example, a Microsoft case mentioned in the parent story includes "clickable end-user licenses", which only uses a few words as the "protection" method. Or the CD protection method that can be circumvented using a marker. At a minimum, hardcopies are more difficult to copy than digital files directly, so it does at least have some merit as a protection scheme.

In essense, I think many arguments used in existing DMCA cases could be used against scanners for the above scenario. And anybody could do this and sue the manufactures.

I'm not suggesting this is a good thing, but perhaps it is a useful method for protesting the DMCA by making it very public and getting the big manufacturers working to help get it changed ASAP.

Pissed off at the RIAA

Get your music here: http://www.modarchive.com

DMCA got me.

I had a development effort halted by threats of the DMCA. I had an idea for software that would allow users access to music that they paid for. It was a simple idea and is (according to a lawer I spoke with) legal under normal US copyright law. I began coding up the program and was maybe half way done when it came to my attention that it may be illegal under the DMCA. I do not have the resources to fight a possible let allown real legal dispute like this. As a result I stopped all work and have not continued. It works like this (important information removed to keep THIS from being illegal through the DMCA, notice no code or details here). You hook up a computer to a digital video source like digital cable or sattelite dish. You tune the signal to your favorite music channel (you know those ones that play music constantly and show a simple text screen with the musician/cd/song name). The computer saves all of the streamed music and either using OCR on the video or by ripping the info out of the digital stream, attaches the info to the music file. Leave your computer, and come back in a day or two and have a 100GB music collection. Under fair use laws, this should be a legal as using a PVR to record your favorite shows for later viewing. Under the DMCA.... I don't know what. By the way, I would love to use this, so if anyone wants to risk it, by all means go for it.

Re:I wanted to read the pdf...

Or maybe using 'head -n6' counts as reverse engineering...

Re:I disagree with the EFF.

So clearly, you neglected to actually see the facts, and read about how the DMCA has been used by name, for lawsuits which do not relate closely with the actual DMCA, and instead, became the worlds new Duct Tape. Use it on anything!

Re:Welcome !

Creators of the DMCA should have their lower horn removed.