More Unintended Consequences of the DMCA

BrianWCarver writes "In the seven years since Congress enacted the Digital Millennium Copyright Act (DMCA), examples of the law's impact on legitimate consumers, scientists, and competitors continue to mount. A new report released today from the Electronic Frontier Foundation (EFF), 'Unintended Consequences: Seven Years Under the DMCA,' (pdf) collects reports of the misuses of the DMCA -- chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation, and interfering with other laws on the books. The report updates a previous version issued by EFF in 2003, which Slashdot also covered."

Well, here's the problem

The problems is (a) if you're a media or software company, you view these as "good" consequence (b) if you're a member of congress, you're routinely told America's financial health is dependant on the strong protection of IP, so you don't see any problem with this (c) hardly anybody has any direct consequence because of DMCA, so they don't see the problem.

So in the face of all that intertia, no one really cares about the extreme cases. I'm guessing the cutover to HDTV in the U.S. (a.k.a. "The Disaster") will generate a lot of problems and make cause a backlash, but right now, it's hard to see anyone in charge or in authority speaking out against the law, and there is almost zero groudswell against it.

stunning conclusion

W-O-W. Telling scientists, programmers, etc... that they can't use current advancements that are avaialble hinders innovation! Oh my.

schadenfreude

BoingBoing linked to the sorrowful tale [techliberation.com] of a guy who's a big pro-lockdown guy on the web who got screwed when his portless DVR ate all the carefully recorded Spanish lessons he had saved for his children. He would've been within his rights to do an external backup, but those rights got trampeled by the fear of casual piracy. Whoops, too bad! I mean.... !no es bueno senor!

Fair Use

Fair Use Under Siege "Fair use" is a crucial element in American copyright law-the principle that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner's market for a work. Fair uses include personal, noncommercial uses, such as using a VCR to record a television program for later viewing. Fair use also includes activities undertaken for purposes such as criticism, comment, news reporting, teaching, scholarship or research. Unfortunately, the DMCA throws out the baby of fair use with the bathwater of digital piracy. By employing technical protection measures to control access to and use of copyrighted works, and using the DMCA against anyone who tampers with those measures, copyright owners can unilaterally eliminate fair use, re-writing the copyright bargain developed by Congress and the courts over more than a century.

What bothers me is that things like this cause people to think that there is no such thing as fair use. I work as a teacher and I make a bunch of presentations [colingregorypalmer.net] for my classes. It's school policy that we can't use copyrighted images for any purposes -- even this clear cut case of non-comercial, educational use. This policy is just one of the many in place to eliminate even the possibility that someone may sue for any reason, no matter how in the right we may be. I'd use creative commons images anyway, but this is very frustrating.

-CGP

Geeks of the world! Unite!

As much as we write and complain about the idiots in government creating legislation that is bad for technology and innovation we have yet to solve the problem. I think given the power of /. we could unite a movement to elect someone with an IQ higher than 3 and not in the back pockets of those abusing the DMCA. Viva la Revolution! Think about it. We could form a new political party where rank comes from ability, not tenure. We could take over the world!

...well, after I blog about it...

then there is my L.U.G. meeting...

and the sites I need to code...

Re:Geeks of the world! Unite!

Why does the EFF not defend your Second Amendment rights? Because that's not part of what they do, AND it's already taken care of! There already is a large and very powerful organization known as the NRA [nra.org]. If you're having problems with your Second Amendment rights, call them, they'll be happy to help you with those. If you're having problems with other civil rights, call the ACLU. They'll help you with those problems. If you're hungry, call your local pizza place. They'll help you out in that case. What's wrong with not being everything to everyone, when it's already taken care of by a -more- specialized organization very competent to deal with that issue?

By the way, what is this about the ACLU being the "mouthpiece for the ultraleft"? The ACLU defends all comers whose civil rights have been violated. Granted, minorities' rights tend to be violated more frequently, whether that be gays, blacks, or those with non-mainstream political philosophies. This means that the ACLU will most often be defending those on the fringes-that's not out of their choice, it's because those are the people who will the most frequently need the defending. But the ACLU will defend (and has defended) the right of people to hold Bible studies in public parks at the same time they fight religious language in the Pledge of Allegiance. No contradiction here-the government must stay neutral on religious matters, neither cheerleading nor getting in the way for any particular religion or religion in general. Same for any other matters-one imagines if the government forced Rush Limbaugh off the air tomorrow, the ACLU would scream the first and the loudest, same as if it were Howard Stern. (What Limbaugh's feelings would be on that are another matter entirely.) Howard Stern's simply more likely to see it happen to him.

Positions of power

There are a lot a people in positions of power with no real understanding of how the real world actually works. Some actually ask the hard questions, few actually do anything about it. Nuff said.

Worse are enhacements to the DMCA

Use a firewall, go to jail [theregister.co.uk]

Evil

From the article: HP's Region-Coded, Expiring Printer Cartridges: Hewlett-Packard, one of the world's leading printer manufacturers, has embedded software in its printers and accompanying toner cartridges to enforce "region coding" restrictions that prevent cartridges purchased in one region from operating with printers purchased in another. This "feature" presumably is intended to support regional market segmentation and price discrimination.

The software embedded in HP printer cartridges also apparently causes them to "expire" after a set amount of time, forcing consumers to purchase new ink, even if the cartridge has not run dry.

Now that's damn evil. After I moved to England, I discovered the that my DVDs no longer worked. But I never knew that this was now in printers as well. How long before some jackass decides to regin-encode my whole laptop?

-Grey [wellingtongrey.net]

EFF: Factually incorrect, again.

I thought I'd pop in a quick comment to beat the rush.. I've barely scanned through the document, but I've already noticed obvious and glaring errors.

For example, they cite the case of Adobe's claim that Nikon prevented them from decrypting their RAW format files. The facts as the EFF documents explains them, are just plain wrong. There was a brief outcry from some overwrought programmers at Adobe over this issue, but it turned out Nikon was always willing to license their proprietary code to developers like Adobe, even before this little dust-up. Nothing to see here, move along, it was just another testy outburst from a programmer who had too much coffee and didn't want to wait for his managers to finish negotiations with Nikon.

I'll go through the document in more detail, and I'm sure I'll find more deliberate misstatements of facts. The EFF always trumps up charges to inflate its case. Perhaps someday they will learn that this tactic undermines their efforts.

Re:EFF: Factually incorrect, again.

Frankly, you're not getting to the core of that.

Of course Nikon will happily license out those decryption routines so one has access to the RAW format; but there's no need to introduce encryption in the first place, or keep the file format non-disclosed, for that matter.

Assume, you're a pro photographer and therefore store your pictures in that very RAW format for maximum resolution. The pictures are *your* creative work, not Nikon's. Who says that they will still support that format in 5 years? Who guarantees you that their software will work with your PC of choice in 5 years?

You buy a camera for making pictures, and you probably want to use that very camera for a period which is usually way longer than what's currently supported by any software manufacturer. There are people who still use old Leicas or Rollei cameras... No pro photographer wants to change their equipment with every new OS generation.

With that licensing model -- Nikon creating an encrypted format which *they* own all rights to and *they* have the power to give and revoke licenses as they want -- they directly affect the photographer in accessing his own creative work.

It's like bringing out an analog camera where the photos are taken scrambled and you can view the photos only using a camera-manufacturer provided lens. Which is provided for a limited time only.

An outburst by a programmer who had too much coffee? Maybe you didn't have enough to see the implications of such artificial crippling of file formats...

Re:EFF: Factually incorrect, again.

Not at all. If you buy a brand-x camera, you can use whatever film you want to use. You are not bound to Kodakchrome and their holy development formulas.

However, with the Nikon approach you are either forced to go for a crippled format (and JPEG *is* crippled from a graphical point of view) or use their very own RAW format. It's not like the camera would support a gazillion of (especially competing) lossless formats by default.

And, sorry, but if Nikon wants their development costs back, then they should raise the price per camera, but not via licensing fees on their oh-so-holy *file format*. While the Kodakchrome process may (or may not) have been superior to other films, it never the less was based on true research. A *file format* for pictures definitely is not. It's a container for pixels and, in the case of digital camera, some color/hue/saturation coefficients derived automatically through a calibration process.

Btw, I'm no photographer. For this discussion it also shouldn't matter whether I am one or not. Exchange "Nikon RAW" with "Word DOC" or "Eagle SCH/PCB" if photographers are such a red flag for you. Maybe you'll then get the point.

Unintended consequences

I like it how the DMCA and other "bad" laws can have unintended consequences, but "good" laws ... nevermind thinking about them for the "good" laws.

Re:Unintended consequences

That might be in part because good laws are written so as not to have negative unintended consequences. Good laws sometimes do have negative unintended consequences, but they are quickly revised to deal with them. For example, most people agree that laws against speeding are desirable. If such a law is formulated too broadly, it will make it illegal to speed even in emergencies where the risk from speeding is overshadowed by the emergency. The speeding law can be formulated carefully so as to except emergencies, and if it is written too broadly can be revised. The problem with bad laws like the DMCA is that their proponents either haven't formulated them carefully or do not see the negative consequences as negative and so are happy with the overbroad formulation.

Read EFF report with a little skepticism ...

Like nearly everyone else involved the EFF has an agenda and a spin. Once example of EFF FUD'ing may be the reference to scientific research. A while ago I read a *government* summary of the DMCA and I believe there is an *exemption for research*. Scientific research and various other activities are inherently exempt.

Re:Read EFF report with a little skepticism ...

Yeah, but try calling Adobe (for instance) and asking for a file to decrypt PDFs for educational (as in university) use. Sure there's an exeption in there, but nobody pays attention to it. They just claim it's a DMCA thing and hang up on you.

Re:Read EFF report with a little skepticism ...

Like nearly everyone else involved the EFF has an agenda and a spin.

You'd have an agenda if you had the Secret Service come to your place of business back in the day and take virtually every top-of-the-line computer you had sunk all your cash into, and then a few years later return those very same computers crushed into small tiny bits.

Does noone remember History? I remember Steve Jackson helping out the WorldCon in New Orleans by loaning us his computers so we could rewrite the dBase III code that their author/artist registration ran on, so we could actually hold the convention with panels.

A year later, he couldn't do that, because the Secret Service took his computers since he was writing a game about Hackers.

Maybe you like living in Soviet Russia, but I don't.

DVDs

"Already, the movie industry's use of encryption on DVDs has curtailed consumers' ability to make legitimate, personal-use copies of movies they have purchased"

I always thought that there was a legal right to be able to make a copy of a dvd for your own use, just incase you lost the original or something. It's really annoying to lose one and then be left stuck. If we do have this right (I'm no lawyer so I'm not sure where we are legally) then why are we not being allowed to use them, is this not witholding our rights and breaking the law?

Not unintended

Jeopardizing fair use and impeding competition and innovation are not unintended consequences. They're major reasons some DMCA supporters wanted it passed.

The invisible foot of Government

Every law passed by the State with the honest and sincere intention of being for the public good turns out *in practise* to be to the (sometimes enourmous) public harm, while hugely benefitting a very small number of people.

independent artists have never had it so good.

An interesting consequence of increased entertainment media costs has been more piracy an poorer sales, an even more interesting one is that in the top 100 hundred (music and video) lists, the big studios and their formula products have failed to knock off the independents, who due to increased airplay have never had it so good. Even better real artists have real fans who prefer genuine products rather than pirated copies. Make you wonder who been stealing from who all these years.

True, but for other things also...

It is definitly true that the DMCA has a whole bunch of really terrible unintended consequences. What is sad is that people don't understand that the same applies to any law. Every single law that the government makes, has similiar unintended consequences - because human behavior and society is so complex we can never truly predict how these things are going to work out.

Geeks tend to understand the terrible effects the DMCA, because that is what Geeks are knowledgable in. If you are an expert in this kind of thing (or at least knowledgable, as most Slashdot people are), you are going to be able to look at it with a more critical eye than the average American. This is our shit, so we know exactly what the deal is.

But remember, the same thing happens when the government makes a law about terrorism, or illegal drugs, or health care, or the enviornment, or anything else. You might not hear about the same effects the way you hear about the DMCA, but it happens. You support the anti-Terrorism bill, and you don't understand the effect it has on imigrants and their families, or the potential racial-profiling and discrimination it causes. You don't hear about the small family buisnesses that get shut down because they simply don't have the money to comply with some new enviornmental regulation you support. You don't hear about the guy who picks up a hitchhiker, and when they get pulled over by the police, the driver goes to jail for 20 years because the hitchhiker happens to be carrying drugs... you think that tough drug laws are only harming criminals. Or you don't hear about the people who dieing of cancer who can't get a potentially life saving treatment, because the government determines it is "too risky".

Laws are about a subtle as a sledgehammer. With maybe the exception of small local government, society is just too diverse and too complex to make a law that doesn't have serious side effects. A law is a like a prescription drug, we know it is going to have some negative side effect, but we think the problem is worse than the potential side effect. The DMCA isn't a bad law - it is a typical law. It has the same type of negative effects than any law has.

The next time you support some new law, remember the DMCA, and remember the same thing is going to happen with that law. That doesn't mean you won't support the law anyway, but it means that like a drug, you need to know what negative effects it might have in order to evaluate the risks.

But if you think you can make a law that doesn't have significant negative effects on society, you are totally fooling yourself.

unintended?

seems this obomination of an act is doing exactly what it was meant to do.

stifle speech -check
ensure massive litigation -check
confuse everyone -check
bad for consumers -check

so what's the problem?

Unintended???

I don't think so.

In soviet russia...

they're laughing at YOU!

Village People?

D-M-C-A It's fun to get stuck with some D-M-C-A....

where the hell did the EFF get the idea

that any of the consequences described in their web page were unintended?

At least by the corporate legal staffers who presumably actually wrote the bill.

The real problem here is that organizations like the EFF that are supposed to represent our interests are tax-exempt non-profits.

If we want the political power to do something about this, we need our own PAC, our equivalent of the NRA or AARP.

What's going on with telecomm legislation (you heard that the net neutrality bill got killed in committee?) is another example of why we've got to organize to buy our own politicians, not put up with what happens when major corporate interests who don't want real innovation and who don't want the public to find out what's really wrong with their products are the only ones with cash in hand.

We have the best politicians that money can buy, if we want to be represented, we have to ante up.

i wonder if Homeland defense has done this yet

lets play "connect the dots"
1 Windows Vista sp3 comes out and encrypts the harddrive to
    1 The magic MS key
    2 some sort of OEM key
    3 the login of the current user (this is limited to the user data directory)
2 a terrorist group then starts using these laptops to plot #evil_NBC_deed and encrypts all communications
3 Some member of the Homeland Defense gets one of these laptops and then yanks the hard drive out and starts wishing that the now dead (cyanide pill) terrorist had written his password down somewhere (he didn't)
4 the hardrive is useless since you would have to bypass (violating the DCMA) three levels of encryption (oh and good luck getting a forensically valid copy of the drive)
5 Prophit!! (for them)

This is the Wave of the Future

Let me start by saying I'm not defending the DMCA or laws of its ilk -- but I understand to some degree why the Powers That Be (Reg. TM) are scared shitless by the digital age.

In the print-and-analog era, piracy on a massive scale was both difficult (as regards production and distribution) and resulted in a product that was of a sufficiently degraded quality to enable the original licensed product to retain some advantage over their black market copies. Sure, you could use your dad's office xerox machine to copy that physics textbook instead of laying out a couple of hundred bucks for the book, but a massive pile of photocopies was unwieldy and far less convenient than a nicely bound book. Sure, you could make cassette copies of LPs (in my youth, I had a whole circle of friends who would share their music thusly), but the audio quality took a nosedive. Sure, you could make VHS dubs of movies, but every successive copy generation reduced the video quality significantly. And if you were looking to profit from such activities, your options for publicizing your wares and distributing them made the concept difficult to execute on any large scale. Now we live in an age in which the content of that 1100-page textbook can be digitized and fit on a CD or jump drive. And perfect digital copies of music and movies can be quickly and easily shared with thousands of people on the Net.

The concept of fair use was something the studios, publishers, and other corporate meagaliths could live with so long as abusing the concept (for profit or otherwise) on any significant scale was problematic. Now, getting that software package or music album or Hollywood blockbuster gratis can be as quick and easy as a few clicks of the mouse.

A parallel is the ongoing controversy over providing and accessing public records online. We're all familiar with the concept of "practical obscurity" -- previously if you wanted to access these records, you had to physically travel to whatever city and edifice in which the documents were archived, then deal with buereaucracy, surly and underpaid public servants, and lots of musty and dusty file folders to find that divorce decree or property deed or tax record. It was legal to do so, but the sheer impracticality of time and logistics the process meant that few would even attempt it. Having those same records (filled with personal information) made available on the Internet is ripe for abuse by scammers, blackmailers, and just plain busybodies.

(And we could start a whole nuther thread about "adult" material and the way in which politicos are more and more amenable to restricting or even denying adult access to such things in the name of "protecting the children.")

Fuss, fume, and write your congresscritter all you like, but eventually you will have to realize that these sort of "baby-with-the-bathwater" laws are the wave of the future -- indeed, the future is already here. This is the dark side of technology -- the "unintended consequences" not just of laws, but of digital technology in general -- "information wants to be free," but now that it is not only free, but easy, expect more and more restrictions on your rights and freedoms. I don't like it any more than y'all do, but as long as savvy and aware people like /.ers are in the extreme minority, and the vast voting populace consists of easily manipulated and apathetic sheep, don't expect things to improve anytime soon.

Who said anything about unintended?

Look, laws are created by lawyers. Lawyers make lots of money from lawsuits. Therefore, it is reasonable to conjecture that lawyers have a vested interest in creating more silly ways for people to sue each other. I'm sure the lawyers who wrote the DMCA knew exactly what they were doing:

1) Taking away more civil liberties in favor of corporations
2) Creating more avenues to generate employment for lawyers

They really killed two birds with one stone on this one...

Re:You can't copyright irony!

Seems to me if I recall correctly that even before the DMCA came out you weren't allowed to just download whatever you wanted just because it was on the web. The DMCA didn't make it suddenly illegal. It didn't even make it particularly more difficult. Perhaps you should consider a different argument? For the record I'm pretty sure that Copywrite is a seperate issue from the DMCA.

Re:You can't copyright irony!

All you have to do to copyright your blog postings is put a claim of copyright and terms of distribution notice at the bottom of your page, then if someone rips your work off, without crediting you, sue their ass. You can even say under what circumstances the work is free to use, and when people would have to pay you.

All this is in existing copyright law. No need for the DMCA whatsoever.

Re:Assuming that it's not intended

so you would say, "working as intended?"