Can The DMCA Be Used To Stifle Speech?

from the we're-about-to-find-out dept

Fri, Mar 28th 2008 12:21am — Mike Masnick

Last summer, we wrote about a very questionable DMCA lawsuit filed by Coupons.com. The company lets people download coupons using its own software. The software is designed to limit how many copies of a coupon people can make. The company accused John Stottlemire of violating the anti-circumvention part of the DMCA by offering up some software that would help people get around the copy limit. However, he didn't just offer up software to do it, elsewhere he explained how you could do it manually, just by deleting a couple of files on your computer. That's hardly a "hack." There was no encryption to defeat, just some files to delete. Basically, Coupons.com couldn't be bothered to come up with a system that was actually secure and put in only the weakest of "protections."

Yet, Coupons.com claims that telling people to delete some files is circumventing their copy protection. The EFF (along with the Samuelson Law, Technology & Public Policy Clinic at UC Berkeley) have now filed an amicus brief with the court pointing out the numerous problems with the charges. As the filing notes, the DMCA is focused on people providing a "technology, product, service, device, component, or part thereof," and comments on a website hardly seem to qualify. It also notes that even if the court interprets written comments to be included, the DMCA is specific that it does not diminish any free speech rights. The filing also looks at other problems with the Coupons.com filing, including the company mixing up the difference between access controls and rights controls. Hopefully the judge realizes that this is (yet another) abuse of the DMCA and tosses the case out quickly.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: circumvention, coupons, dmca, speech
Companies: coupons.com

16 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 28 Mar 2008 @ 3:11am

Wouldn't this be the equivalent of telling someone in the street that someone's front door is unlocked? Is that a crime?
[ link to this | view in chronology ]
Vincent Clement, 28 Mar 2008 @ 4:25am

Exactly how has the DMCA helped the consumer and the content provider? Each and every DVD copy protection scheme has eventually been defeated.
[ link to this | view in chronology ]
Anonymous Coward, 28 Mar 2008 @ 5:06am

There are other sites that prevent reprints by setting a cookie.

Clear your cookies and you can get as many as you want.

Now sue me.
[ link to this | view in chronology ]
Anonymous Coward, 28 Mar 2008 @ 5:41am

Just as long as it just stifles Mike's ignorant speech. Don't worry he knows what he is talking about with all of those law...patent...wait...no he doesn't.
[ link to this | view in chronology ]
- YouKnowNothing, 28 Mar 2008 @ 7:00am
  
  Re:
  I disagree with what you say, but I'll defend to the death your right to say it.
  [ link to this | view in chronology ]
bored now, 28 Mar 2008 @ 6:06am

wanktards
The DMCA (whatever you may think of it) was enacted to protect the rights of artists and those in the creative industries. Not printer ink price gougers, not electronic vote riggers and not incompetent coupon pedlars.

Wanktards like these just p*ss me off.
[ link to this | view in chronology ]
- YouKnowNothing, 28 Mar 2008 @ 7:03am
  
  Re: wanktards
  No it wasn't. It was enacted to protect the profits of copyright holders. Often, the copyright holders are not the artists. "Rights of artists" has very little to do with it.
  [ link to this | view in chronology ]
  - bored now, 28 Mar 2008 @ 7:18am
    
    Re: Re: wanktards
    Couldn't resist missing the point in your rush to have another dig at rights holders, could you?
    [ link to this | view in chronology ]
    - ehrichweiss, 28 Mar 2008 @ 7:23am
      
      Re: Re: Re: wanktards
      Except, he's right. It was *said* to be for the artists but if you follow the money, it wasn't about them at all.
      [ link to this | view in chronology ]
      - bored now, 28 Mar 2008 @ 9:22am
        
        Re: Re: Re: Re: wanktards
        And you're doing the same thing that he did - focusing on your obsession with attacking the content industries while ignoring the substantive issue in the post - that the DMCA was not intended to be used by printer ink price gougers, electronic vote riggers and incompetent coupon pedlars, as described in this or several other cases.
        [ link to this | view in chronology ]
chris (profile), 28 Mar 2008 @ 6:06am

why else would you have the dmca?
the DMCA obviously worthless as a tool to stop infringement, so it must be a tool to stifle free speech.

information security in any form is a game. in this game, there is no score; you either outclass, or you get outclassed. there is no league or state commission to regulate who gets to play.

there is a reason that couch potatoes can't just walk on to a football field and play professional football. we all know the amateurs would get killed in minutes, if not seconds. that's why there are boxing commissions, and football leagues.

when a company buys or builds something that they think will protect their "content", they are (whether they realize it or not) walking on to a football field to play against world class players. just like couch potatoes, they get outclassed every single time. rather than admit that the game is impossible to win and quit playing, the corporations have bought laws that make beating them illegal.

they know they can't compete, so they use their money to buy legal protection. what's funny is that by hiding behind the law, they just declared open season on everything with a digital lock or control. queue irony in 3.. 2.. 1..
[ link to this | view in chronology ]
Mordaxus, 28 Mar 2008 @ 10:02am

This is just a damned silly suit
The DMCA protects an effective technological protection means. They'd have to prove it was effective. It also has penalties for idiots who try to use it for unjustified takedowns. Coupons.com is likely in for trouble.
[ link to this | view in chronology ]
Matt Bennett, 28 Mar 2008 @ 11:57am

Remember when some on CD DRM (I think it was Sony BMG, actually) required the auto-play feature to download it to the user's computer? The company sued some guy who pointed out you could hold down "shift" while you put the disc in.
[ link to this | view in chronology ]
John (profile), 28 Mar 2008 @ 1:42pm

What's the problem here?
[ link to this | view in chronology ]
John (profile), 28 Mar 2008 @ 1:47pm

What's the problem here?
Coupons are worthless by themselves: you have to take the coupon to the store to redeem it.
So if people are "gaming the system" to get more coupons, don't they have to buy more things from the store, which means more money for the store... possibly from people who may not have gone to that store (or bought as much stuff) if they didn't have a coupon?

The only issue is if the store issued a "get it for free" coupon which people were using over and over. But that's an issue with the store, not the users or Coupons.com.

If stores were smart, they'd issue "20% off orders over $200" coupons and let people print them all day long. If people really want a gazillion of these coupons, they'll have to keep spending $200 at a time to use it.

Otherwise, the store should be happy it's getting more customers... and Coupons.com should be happy that the stores are happy with the results they get from Coupons.com (even if users "cheat").
[ link to this | view in chronology ]
- Brand Manager, 31 Mar 2008 @ 6:33am
  
  Re: What's the problem here?
  It's not about YOU printing. It's about stores cheating. The stores get reimbursed the face value of the coupon plus a handling fee by the issuer - the consumer packaged goods company.
  
  CPGs do not know that you had exactly 250 boxes of Cheerios in your store at a given time. That's not how the supply chain functions.
  
  So a store could cheat by printing out coupon after coupon after coupon and get free money with every coupon submitted. The brand pays out but never actually sells any product.
  
  That's the problem here.
  [ link to this | view in chronology ]