A Look At Twelve Years Of Dangerous Unintended Consequences From The DMCA

from the stifling-free-speech-in-the-name-of-hollywood dept

Tue, Mar 9th 2010 6:45am — Mike Masnick

The DMCA has been in place for a dozen years now, and the harm done by its provisions has become quite clear. The framers of the DMCA did not take into account the unintended consequences of the law -- and even one of the main authors of the law, Bruce Lehman, now admits it was a mistake (though, as far as we know, he still hasn't apologized to James Boyle, who accurately predicted many of unintended consequences of the DMCA, only to have Lehman threaten to "rip his throat out" and to get Boyle denied tenure). So, twelve years in, the EFF has put out a document highlighting all of the dangerous unintended consequences of the DMCA:

The DMCA Chills Free Expression and Scientific Research.
Experience with section 1201 demonstrates that it is being used to stifle free speech and scientific research. The lawsuit against 2600 magazine, threats against Princeton Professor Edward Felten's team of researchers, and prosecution of Russian programmer Dmitry Sklyarov have chilled the legitimate activities of journalists, publishers, scientists, students, programmers, and members of the public.
The DMCA Jeopardizes Fair Use.
By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public's fair use rights. 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.
The DMCA Impedes Competition and Innovation.
Rather than focusing on pirates, some have wielded the DMCA to hinder legitimate competitors. For example, the DMCA has been used to block aftermarket competition in laser printer toner cartridges, garage door openers, and computer maintenance services. Similarly, Apple has used the DMCA to tie its iPhone and iPod devices to Apple's own software and services.
The DMCA Interferes with Computer Intrusion Laws.
Further, the DMCA has been misused as a general-purpose prohibition on computer network access, a task for which it was not designed and to which it is ill-suited. For example, a disgruntled employer used the DMCA against a former contractor for simply connecting to the company's computer system through a virtual private network ("VPN").
Clearly, it's long been time to rethink the entire premise of the DMCA, but it seems like there's little appetite for Congress to actually do this. Hell, the EFF put out a similar document two years ago, highlighting the unintended consequences and calling for a rethink.

And what's happening instead? Via ACTA, the US isn't just doubling down on the worst of the DMCA, it's trying to spread it around the world and to make sure that the US cannot fix the problems of the DMCA by creating an agreement that will allow DMCA defenders to say that we can't fix the DMCA or we'll violate our "international obligations."

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Filed Under: copyright, dmca, unintended consequences

31 Comments

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:Lobo Santo (profile), 9 Mar 2010 @ 7:13am

Almost
It's almost 'up against the wall' time...
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Anonymous Coward, 9 Mar 2010 @ 7:17am

free expression isn't unlimited. dmca doesn't limit free speech, except where that free speech starts to impact others.

dmca and fair use will always be an issue. the type of fair use demanded often would mean opening a product up entirely to widespread piracy or duplication. talk about unintended consequences.

dmca only blocks hacking and reverse engineering. sometimes it is applied to widely, but exceptional cases do not make the whole concept of dmca invalid.

dmca doesn't change computer intrusion laws. a contractor who is no longer in employee should not be access the systems. it isn't the employers fault.

citing narrow misapplications or issues doesn't detract from the good and valid uses for dmca. your logic would suggest that the best way to stop street corner squeege beggars is to outlaw squeege production. it is foolish logic.
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DH's love child, 9 Mar 2010 @ 7:18am

Re: Almost
I agree!

There are times where I think this is all a failed experiment waiting for a reset.....
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R. Miles (profile), 9 Mar 2010 @ 7:18am

Oh, come on Mike. Don't be so negative. Let's see how the DMCA did good, shall we?

Corn farmers have been saved! - now that consumers don't want crappy DVDs with unskippable previews or fair use restrictions, they go to the movies. 4 of the last 5 years were record breaking years, and moviegoers just love their popcorn!

Terrorism is at an all-time low! Again, all due to the DMCA as "pirates" have been shown to buy more than those who don't. Now I can sleep better at night.

New businesses have evolved! - Companies like Netflix and RedBox are flourishing because people dislike how the DMCA is applied to their DVDs.

Apple is now litigating! - now that it's retained $0.30 more per song, originally DRM'd due to the DMCA, it can now afford to litigate against all those companies violating patents!

A weatherman is now famous for his 9" joke! - a DMCA takedown notice has made Pete Bouchard a household name!

McD's receive more customers, thanks to the DMCA! - even bad publicity over a dancing kid to a happy meal CD is good publicity.

So, these are just a few examples, Mike. Try to keep a smile, okay? ;)

Note: the parodies above are sarcastic in nature and I fully agree the DMCA has done more damage than good.
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R. Miles (profile), 9 Mar 2010 @ 7:22am

Re:
"dmca and fair use will always be an issue. the type of fair use demanded often would mean opening a product up entirely to widespread piracy or duplication. talk about unintended consequences."
Bull. In no way has the DMCA ever stopped duplication and it never will. In fact, if anything, the DMCA has been the reason for more duplication than not.

Imagine how you'd feel when you spent $1200 for a software package, spent hours installing it, only to be greeted with the message "The security key used to register the product has already been registered."

I'll come to you the next time I have to spend HOURS on the phone with Adobe to explain the situation.

If Adobe hadn't put restrictive crap on their software, there wouldn't have been a need for a keygen, now would it?

The axe swings both ways, AC. Learn now or pay later. Your choice.
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Anonymous Coward, 9 Mar 2010 @ 7:32am

Re: Re:
the security key being already used? i would say you can thank one of those fine people using a keygen or lifting the keys off the pack in the shop.

if you had to spend hours with abode on the phone over this i think you probably aren't very good at communicating. this would be a simple issue to resolve.

if this is your full reason to get rid of dmca then i would say you haven't made a case.
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Dark Helmet (profile), 9 Mar 2010 @ 7:41am

A thought:
"The framers of the DMCA did not take into account the unintended consequences of the law"

There would obviously still be room for abuse, but why can't lawmakers adopt a format that includes a brief header on their intentions for each law and perhaps each subsection of the law. That way, for whatever section of the DMCA that covers anticircumvention law, they could have stipulated in the "Intention" section that the law was not intended to be used to stifle legitimate personal backups.

Then, when cases such as encryption on DVDs were brought to court by the EFF or whoever, they could just point to the intention of the law and the judge could put the smackdown on the company.

Again, obviously all systems will allow for SOME room for abuse, but it seems to me that this intention invocation would clarify much and close at least some of the loopholes....
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Anonymous Coward, 9 Mar 2010 @ 7:41am

So I own a bunch of DVD's, and I also own an iPhone, and I want to be able to copy a movie/TV show I own on to my iPhone so I can watch it on say.. a long airplane ride. Why do I have to buy a program from Antigua to be able to do this?
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:Lobo Santo (profile), 9 Mar 2010 @ 7:59am

Re: A thought:
I am all for this.

Additionally, laws should be reviewed periodically on the basis of intention and efficacy, the revised, renewed or disposed of upon that basis.
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Anonymous Coward, 9 Mar 2010 @ 8:10am

Is this your first Apple product? Sounds like it. As you are quickly learning, when it comes to Apple products, you pay for everything. Just look at MobileMe..."oh you want to do what with your iPhone...well theres a charge for that". Otherwise, just search for the free tools and spend hours learning how to do the 100 steps involved to get from point A to point B...those are the two options these days. Become a geeknerd and delve into the world of the do-it-yourself method which is pieced together and often incredibly unintuitive and unuserfriendly....or just buy some commercial poduct that will do it for you. It all depends on how valuable your time is.
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Modplan (profile), 9 Mar 2010 @ 8:32am

Re:
dmca doesn't limit free speech, except where that free speech starts to impact others.

Assuming that the lack of DMCA would have a negative impact (Various prior studies have shown that people who engage in piracy actually buy the most overall), and that somehow copyright enforcement and infringement is an issue of free speech. It's fair use that protects free speech, not the DMCA.

The examples the EFF provided above, and many others over the years have clearly shown how the DMCA stifles free speech and fair use. Cases of DMCA abuse are not fringe. This site in general and the EFF have covered for a long time these abuses, and the EFF actively fights against them.
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Anonymous Coward, 9 Mar 2010 @ 8:42am

Re:
dmca doesn't block hacking or reverse engineering. It only blocks regular guys from enjoying the benefits of said hacking and reverse engineering

sincerely, hacker and reverse engineer.
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Anonymous Coward, 9 Mar 2010 @ 8:44am

Re:
"Search for the free tools and spend hours learning how to do the 100 steps involved to get from point A to point B"

So you are suggesting he looks for ways to circumvent the methods established so that he may gain a way to access the content he wants freely instead of paying for the service?
Almost sounds like you are advocating for the mentality that created the piracy....instead of defending the DMCA, like you intend.
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Flakey, 9 Mar 2010 @ 8:49am

DMCA
It's not just garage door openers and iPhones. Until congress ruled that the computer codes in vehicles that were required to find the fault in a vehicle were ruled not to be eligible for DMCA, all car makers wrapped them in the DMCA and refused to give the codes out. This meant that when you had a problem with your car, not just any mechanic could fix it. You had to go to the dealership and pay their exorbitant fees and charges to just find out what was wrong.
This aided in the covering up of the Toyota defects in braking and acceleration as Toyota uses a non-standard code and program. Additionally, only one laptop in the US was available to read the black box data. Toyota was not particularly forthcoming with even what the black box data contains.
Source
It is possible that one man was sent to jail for vehicular manslaughter for 8 years because he claimed the car he was driving (one of the car models under recall for unexplained acceleration) did just that. At the time, if Toyota knew of the problem, it brought forth no information.
Source
When it gets to becoming life and death, years of jail time because of not being able to access needed information, DMCA takes on a whole new meaning in what it hides.
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aguywhoneedstenbucks (profile), 9 Mar 2010 @ 8:57am

Re: Re: A thought:
A simple sunset clause in all laws would accomplish this. The up side would be that politicians would be so busy looking at old laws that they wouldn't be able to come up with new idiotic things to push on us for a while.
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RD, 9 Mar 2010 @ 9:00am

Re: Re:
"dmca doesn't block hacking or reverse engineering. It only blocks regular guys from enjoying the benefits of said hacking and reverse engineering"

hahahahahaahaha!

(deep breath)

bwahahahahahaha!

Good one! Thats a joke, right? Because the DMCA most certainly DOES prevent (or at least, provides a penalty for) hacking and reverse engineering. Without a doubt, this is EXACTLY what it is used for. Just as the people making stuff like compatible garage door openers or any mod chip for anything. To say otherwise is disengenous and a flat out falsehood. Though I was beginning to wonder where TAM had gotten off to...guess we know now.
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R. Miles (profile), 9 Mar 2010 @ 9:24am

Re: Re: Re:
"i would say you can thank one of those fine people using a keygen..."
You're missing the point, clearly. The keygen was made because the DRM was easy to crack.

"if you had to spend hours with abode on the phone over this i think you probably aren't very good at communicating. this would be a simple issue to resolve."
Really? Because the communication was very simple:
Me: "Yes, I'm calling about an error message I received when registering my software. It says the code was already used."
Adobe CS: "We apologize for the inconvenience. Can you tell me where you bought your software?"

Me: "Your website. Order # blah blah blah"
Adobe CS: "I can see you downloaded the software. Good. Now, can you tell me where you got the registration code?"

Me: (thinking) "WTF! From your website, genius" (actual) "The website gave it to me after the download was complete."
Adobe CS: "Well, the code should work, then. Can you try again, please."

Me: I do. Same error. Reports back.
Adobe CS: "I see. It appears someone has registered this code already." (no shit, Sherlock) "Do you mind if I put you on hold while I investigate?"

Me: "No, go ahead"
(Waits. Waits. Waits. 15 minutes later...)
Adobe CS: "I'm sorry, sir. But since the code has already been registered, you can't use the one you have."

Me: "I understand that. Hence, the phone call."
Adobe CS: "You'll need to purchase another license, sir, in order to activate it."

Me: "Excuse me? I just bought the software! I'd assume the license for single use is included."
Adobe CS: "It is, sir. Unfortunately, the code's already been registered. You now require a license to register the software."

Me: "I get that. However, I just purchased it just a few hours ago. You have proof. The key given to me was by Adobe. How the hell did it get registered if it was given to me? I'm not buying another license."
Adobe CS: "I'm not sure how it was registered, but it was. I can only offer another license to generate a new key."

Me: "I'm not settling for this. I just spent $1200 and I can't even use the software I bought. This is Adobe's problem and I want it fixed, please."

AC, this went on back and forth. I had to provide my DoB, SSN, and CC information many times. My phone number, so they can call me to verify me. No shit. I spoke with someone who called just to verify it was me!

At the end of it all, this "simple" solution was anything but. It was a complete nightmare, especially when they had all the information proving I was a legitimate buyer.

But don't take my word for it, AC. Try it yourself. Best hope your key code works, or you're in for a world of hell trying to convince Adobe you're not a damn pirate. Good luck with that.

I still retain the several emails which went back and forth (proving myself, of course). They're fascinating reads, AC. So much so, I'll never, ever, ever, ever buy an Adobe product ever again. It'll be easier to pirate it, as I've never heard any complaints on a pirated copy front. Ironic, isn't it?
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Sneeje (profile), 9 Mar 2010 @ 9:28am

Re:
"dmca and fair use will always be an issue. the type of fair use demanded often would mean opening a product up entirely to widespread piracy or duplication. talk about unintended consequences."

Except that those unintended consequences have already been seen. Products have been produced by individuals since civilization began that have no DRM or legal protections, yet profit can be made. Software has been made and sold for a profit without DRM before the DMCA.

So, exactly what were the dire unintended consequences? Innovation? Progress? Oh wait, those people didn't make enough money, so guess we need government protection...
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azuravian (profile), 9 Mar 2010 @ 9:30am

Re: Re: Re:
@RD:

Did you hear that whooshing sound? the ACs comment was obviously a joke referencing the fact that the net effect of the DMCA is to impact the average consumer more than the hacker.
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Anonymous Coward, 9 Mar 2010 @ 9:46am

Other than backups authorized under 17 USC 117 re software, what section is EFF relying upon when it states without qualification that "movies" can likewise be backed up?
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John, 9 Mar 2010 @ 9:57am

I'm not certain...
I don't believe that all of the consequences of the DMCA that were pointed out were unintended. I believe the act was sold for one purpose with the idea that it could be used for other purposes as it has been.
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Hoby (profile), 9 Mar 2010 @ 11:43am

Like I said before it was adopted: Bad idea. No good will come of the DMCA. It doesn't make me feel good to be right about that prediction.
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btr1701 (profile), 9 Mar 2010 @ 11:56am

Re: Speech
> except where that free speech starts to impact others

speech *always* impacts others. That's hardly a valid legal argument for curtailing it. Free speech wouldn't mean much if the only way it were legal was if you had to stand in a room and talk to yourself where no one else could hear.

The speech of the American Nazi Party certainly had an impact on the Holocaust survivors in Skokie, Illinois, but the Supreme Court basically said, "too bad" when the city tried to deny them a permit to march. We all have to put up with stuff we don't want to hear in order for society to remain free.
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B-Small, 9 Mar 2010 @ 12:30pm

Hmmmm.. you think maybe corruption has something to do with this?
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PRMan, 9 Mar 2010 @ 1:18pm

Re: Re:
dmca and fair use will always be an issue. the type of fair use demanded often would mean opening a product up entirely to widespread piracy or duplication. talk about unintended consequences.

Yeah, if Amazon.com tried to sell MP3s with no DRM, they wouldn't sell any at all. Oh wait, they're the #2 music seller in the world. Nevermind.
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PRMan, 9 Mar 2010 @ 1:21pm

Re: A thought:
Ironically, the NHL Rule Book does exactly this. In addition to the rules as written, they have a "Situation Guide" which explains the types of situations in which the rules are intended to be called and what types of play they are trying to eliminate.

NHL officiating used to be atrocious, but since they published the Situation Guide, it's the best of the 4 major sports.
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Dark Helmet (profile), 9 Mar 2010 @ 1:43pm

Re: Re: A thought:
And this is yet another reason why the NHL is the only true major sports league left....
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Hephaestus (profile), 9 Mar 2010 @ 6:57pm

Re: DMCA
"It is possible that one man was sent to jail for vehicular manslaughter for 8 years because he claimed the car he was driving (one of the car models under recall for unexplained acceleration) did just that. At the time, if Toyota knew of the problem, it brought forth no information"

Which state was the case you are refering to Cailifornia, Florida, Texas or Connecticut? There have been a couple.
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Anonymous Coward, 9 Mar 2010 @ 7:29pm

Re:
"free expression isn't unlimited. dmca doesn't limit free speech, except where that free speech starts to impact others."

I think part of the purpose of having free speech is exactly to have free speech that can impact others, namely, broken governments and corporations that act unethical. They SHOULD be impacted by free speech that can serve to punish them and get politicians thrown out and corporations and their leaders punished for acting unethically. Yes, free speech can impact others, but that's exactly the point. It can prevent others from taking away our rights, which does indeed impact them, but that's part of the purpose. It even allows us to discuss the possibility that a corporation or politician did something wrong even without hard evidence, even with no evidence, we can state it to be our opinion.

Now a case of defamation would be if I told someone that I personally saw someone steal from the store when I didn't or if I fabricated evidence that I know is not true. defamation is intentionally saying something that you KNOW is false to harm someone. But free speech that can impact others, especially big corporations and politicians, is part of the very purpose of free speech. If I buy a product and it sucks, or if it breaks, or if I think I received bad customer service, I should absolutely have the freedom to express my concerns to others. Yes, It can impact the corporation that made the product, but who cares. Make a better product or improve your customer service.
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Anonymous Coward, 9 Mar 2010 @ 7:30pm

Re:
"the type of fair use demanded often would mean opening a product up entirely to widespread piracy or duplication. talk about unintended consequences."

Yes, because you do not intend for the government to pass laws that serve the public good, only to benefit special interest groups at public expense.
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trajectory (profile), 11 Aug 2011 @ 2:34pm

Re: Re: Re: Re:
I know I'm responding to an older post but the attitude described is right on target and has gotten worse - Adobe now negates their responsibilities under their own EULAs and has what appears to be a strategy to devalue all their used software on the market inorder to drive users to their new releases. Adobe files false DMCA takedown requests as a matter of routine. I'd like to hear from anyone who has had these experiences with Adobe.
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