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Yes, The DMCA Is Still Quite Controversial

from the anti-circumvention? dept

Thu, Aug 26th 2010 9:10pm — Mike Masnick

Michael Scott points us to an interesting blog post by law professor Tim Armstrong wondering if the DMCA is still controversial, noting that while many of the biggest fears associated with the DMCA when it was first passed did, in fact, come true, many of them were cut back by court decisions that limited the interpretations of the DMCA away from the most dangerous ones.

Dire predictions followed about how the DMCA would restrict fair use, distort competition, erode privacy, and jeopardize academic research. In the early years of the statute's existence, these predictions appeared to be fully justified: the DMCA was invoked to attack a DVD player for the Linux operating system; to imprison a Russian programmer transiently present in the United States based on conduct that was lawful in Russia where it occurred, and to harass and threaten an American computer scientist in an attempt to deter him from publishing his academic research, among other things. Cases like these appeared to substantiate the view that the DMCA had fundamentally upset the historical balance between the rights of owners and the rights of users of copyrighted works.

I can't help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. The courts have been rebuffing efforts to use the DMCA as a tool to impede competition, and content producers seem to be relying less and less on the types of DRM technologies that were at issue in the early wave of cases.

He notes some more recent court cases, and the fact that the Library of Congress is finally approving consumer-friendly DMCA exemptions.

I don't buy it, however. There is still plenty that is highly controversial about the DMCA, and the fact that producers are relying less and less on DRM doesn't fix the massive problems that the law has created with its anti-circumvention provisions, that still make perfectly non-infringing activities illegal for no good reason at all. Separately, there's a rather important lawsuit going on right now questioning the limits of the DMCA's safe harbors, which could have tremendous chilling effects on internet services if the district court's ruling is not upheld. And while it may be amusing that some of the DMCA's biggest supporters are now complaining about the aspects they don't like, that doesn't make the overall law any less controversial for those who feel that it has always been a massive and dangerous overreach.

Unfortunately, it does seem like most people have accepted that the DMCA will not be fixed any time soon, but to claim that things are fine and dandy since we avoided the worst of the worst, seems to miss out on many of the ongoing concerns.

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Filed Under: copyright, dmca

17 Comments

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Jay (profile), 26 Aug 2010 @ 10:17pm

Did he miss the three RIAA lawsuits in the works?

Tenenbaum, Thomas-Raisset, and Harper?

Somehow the DMCA continues to be a nightmare for these three for the simple fact that they are damned if they do and damned if they don't.
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- Mike Masnick (profile), 27 Aug 2010 @ 1:52am
  
  Re:
  Did he miss the three RIAA lawsuits in the works?
  
  Tenenbaum, Thomas-Raisset, and Harper?
  
  Are those really DMCA specific? I think they're straight copyright law, and don't have much to do with the parts of copyright law added by the DMCA.
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  - Jay (profile), 27 Aug 2010 @ 5:43am
    
    Re: Re:
    I thought the statutory damages may have been set higher by DMCA laws, but now I see it's only copyright.
    
    I retract my former statement.
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  - Anonymous Coward, 27 Aug 2010 @ 7:35am
    
    Re: Re:
    You are correct. These are not DMCA based since they involve only individuals who are being sued directly for copying and/or distributing content secured by copyright law. Copying and/or distribution have plainly occurred. The issues in each are directed to the damages provisions of statutory damages, two arguing that the awards against them are excessive and constitutionally infirm, and the third that an innocent infringment reduction of statutory damages should apply.
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    - btrussell (profile), 27 Aug 2010 @ 8:13am
      
      Re: Re: Re:
      Copying and distributing?
      Did they rip the CDs' and then sell copies of them?
      
      They could not do what they did unless someone previously ripped and made available.
      
      If you give me a usb stick and tell me your resume is on it, which I then copy and distribute to others who will decide on your employment, am I infringing on copyright if it turns out you gave me music instead of your resume?
      
      If everyone knew what they were downloading off of the net, would everyone continue downloading viruses?
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Richard (profile), 27 Aug 2010 @ 1:53am

Chilling effects
Does he also miss out the "chilling effects" - ie people have learnt do avoid doing the things that provoke lawsuits.

In particular service providers taking stuff down on the flimsiest of complaints.
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- nauer (profile), 27 Aug 2010 @ 6:47am
  
  Re: Chilling effects
  I don't think that the safe harbors for ISPs are under as great of a threat from erosion as the post's author suggests. The more pressing issue left in the DMCA is the notice and takedown practices that occur these days. Ever since the 9th Circuit Rossi decision, protections for end user rights have been left wanting. From both an effort and monetary perspective, end users are usually at a disadvantage when it comes to fighting these erroneous takedown notices.
  
  But, I think overall it's safe to say that the DMCA has certainly injected much more predictability and confidence into the system than there was before.
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Anonymous Coward, 27 Aug 2010 @ 5:12am

DMCA Problems Caused By Consumer Stupidity
If consumers were to adopt the simple rule: Do not buy anything with DRM in it, then most DMCA problems would go away. DRM-infected content would simply not sell. Instead consumers should buy DRM-free content from independent suppliers. It is perfectly possible to refrain from patronizing any of the large content suppliers (who are fond of DRM), for years on end. If the majors see the independents going from strength to strength, year after year, they will eventually get the message.

Consumers should stop being sheeple. No you do not need to see the latest Hollywood blockbuster. No you do not need to buy DRM-infected music. Just say no.
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- Anonymous Coward, 27 Aug 2010 @ 6:23am
  
  Re: DMCA Problems Caused By Consumer Stupidity
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- gindil (profile), 27 Aug 2010 @ 6:25am
  
  Re: DMCA Problems Caused By Consumer Stupidity
  Actually, that's what's happening. More DRM = less sales. Plus indie music is getting a lot larger, along with the likes of Radiohead and Trent Reznor leading the way to connect with fans.
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  - Chronno S. Trigger (profile), 27 Aug 2010 @ 6:46am
    
    Re: Re: DMCA Problems Caused By Consumer Stupidity
    This is exactly what's happening. Even Tim Armstrong saw it, he just came to the wrong conclusion.
    
    "I can't help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners."
    
    The DMCA is still controversial, but as businesses try to use it for what it is they find it's a bad thing for business. So they decide to ignore it and go with what will sell. Thus we don't hear as much about it any more.
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  - crade (profile), 27 Aug 2010 @ 7:57am
    
    Re: Re: DMCA Problems Caused By Consumer Stupidity
    Yes, but it's going to come into play in new ways, when the digital locks are on things that are only indirectly sold to the end customers. Trying software to hardware is going to be the next big problem I think.
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    - crade (profile), 27 Aug 2010 @ 7:58am
      
      Re: Re: Re: DMCA Problems Caused By Consumer Stupidity
      Should be "tying sw to hw"
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BoloMKXXVIII (profile), 27 Aug 2010 @ 6:48am

We haven't seen all the problems with DMCA yet. I understand car manufacturers may encrypt some of the traffic between computers in their cars. If anyone trys to make a "will fit" electronic part they will be sued due to DMCA.
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crade (profile), 27 Aug 2010 @ 7:23am

I'm not sure why it would be controversial.. It has obviously stopped piracy dead, and hasn't caused any problems at all since it's inception.
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Hephaestus (profile), 27 Aug 2010 @ 7:45am

How to crash the internet using DMCA takedowns.
A really weird thought just occured to me ...

Buy a section of a botnet and program it to issue DMCA takedowns. Wouldn't that be a hoot. Making life miserable for a couple million people all of whom would then start complaining about the DMCA.

Or better yet when three strikes happens. A three strikes botnet.

It would bring to the forefront how proof is required and not acquisition ...
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Anonymous Coward, 27 Aug 2010 @ 10:57am

The fact that court's have to strain against the plain language of a statute to get a result that approaches justice is a problem in itself, if you ask me.
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