Groups Call On Congress To Explore Fixing DMCA's Broken Anti-Circumvention Provisions

from the about-time dept

Thu, Mar 28th 2013 4:06pm — Mike Masnick

A bunch of companies (including us) and public interest groups all came together this week to ask Congress to hold hearings to look into fixing the DMCA's anti-circumvention provisions, and to recognize that any law that says you don't actually own what you've bought is a big problem. It focuses mainly on the problems with mobile phone unlocking, but asks Congress to go further than just a duct taped fix, and to actually explore why the cell phone unlocking problem came about and to fix the real root cause: an anti-circumvention provision that prevents people from making use of products they've actually bought.

In the longer term, we believe that the widespread concern about cell phone unlocking illustrates how these parts of the DMCA can interfere with consumer rights and competition policy. This interference is not limited to the realm of mobile communications devices. Congress must take action to ensure that laws and policies are keeping up with the pace of technological change. Not addressing these questions will stunt advances in access to digital media for people with disabilities and may prevent new innovations and competitive uses for emerging devices, as uncertainties around the law and the three-year cycle creates a chilling effect for individuals, businesses, innovators and investors who may be covered by the law.

To that end, we request that as the leadership of the two committees of jurisdiction, you convene hearings this year to investigate these possible reforms to the anticircumvention provisions of the DMCA in order to begin a thorough discussion of these problems.

Actually getting Congress to care about this may take some work, but it is a key issue if the US really wants to remain competitive with other countries. Furthermore, anyone who claims that we can't fix this part of the DMCA because of international obligations is really only demonstrating why IP issues shouldn't be a part of any trade agreement.

Joint 1201 Reform Letter (PDF)Joint 1201 Reform Letter (Text)

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Filed Under: 1201, anti-circumvention, congress, copyright, dmca, fix dmca

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Spike (profile), 28 Mar 2013 @ 4:12pm

And I'm still disgusted to shame that Canada still had to carve this very same piece of garbage into law despite all the public outcry.
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Mason Wheeler (profile), 28 Mar 2013 @ 4:20pm

We don't need to "fix the DMCA"
We need to repeal the DMCA in its entirety. It is the foundation that all digital copyright abuse these days is built on, and contrary to some claims, (even by otherwise-knowledgeable people like Mike who really ought to know better,) it does nothing good to help promote the growth of the Internet, but holds it back instead.

You frequently hear that the "safe harbors" in the DMCA help to promote the Internet and protect useful sites like YouTube from liability, but this view is completely inconsistent with reality. In the real world, the "safe harbors" establish massive chilling effects and create liability.

Just look at YouTube. What are they being sued for by Viacom? Liability due to violating the DMCA's safe harbor provisions.

Look at Veoh. They recently won their case, but only after they'd been sued into bankruptcy and their business shut down. What were they sued for? Liability due to violating the DMCA's safe harbor provisions.

Look at Megaupload. They bent over backwards to comply with the DMCA and go the extra mile to stay on the content industry's good side, but when they went and tried to launch a service that would have directly competed with the recording industry, what legal doctrine did the industry use to get Megaupload raided and shut down? Liability due to violating the DMCA's safe harbor provisions!

If the DMCA did not exist, there would be no safe harbor provisions to violate, and no liability therefrom. Internet services would operate under Common Carrier doctrine, which gives them no liability whatsoever as long as they treat content fairly.

This is the same legal doctrine that other carriers of content originated by other people work under, such as UPS and FedEx. Have you ever heard of them being sued for delivering something that was illegal? If YouTube was operating under Common Carrier, they could have laughed Viacom out of court instead of ending up in a long, protracted lawsuit.

The DMCA does nothing to help the Internet. It is evil and corrupt from beginning to end, and does not need to be fixed or reformed, but repealed in its entirety.
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- Mason Wheeler (profile), 28 Mar 2013 @ 4:22pm
  
  Re: We don't need to "fix the DMCA"
  Argh. Why does Techdirt's comment system not have an Edit button? Something screwed up my formatting... :(
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  - Anonymous Coward, 29 Mar 2013 @ 1:27am
    
    Re: Re: We don't need to "fix the DMCA"
    Use the preview option to see what it will look like after being submitted.
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- Anonymous Coward, 28 Mar 2013 @ 4:53pm
  
  Re: We don't need to "fix the DMCA"
  Actually, this is where I actually disagree a bit. As far as digital locks are concerned like the petition, they are useless and do hamper innovation.
  
  The DMCA about common carrier I think is leaned way to far in the realm of copyright holders. IMHO, if Viacom wants to take down a video from YouTube, they should have to file a civil complaint. Get a judge to sign off, then subpoena Google to remove the video. Then, they can take legal action against the poster if the judge allowed them to search records for the poster.
  
  This is the way the laws were written for the US, it's takes judicial oversight to enforce laws. Currently we have a system that is guilty until you can prove innocence, and that is the part that back asswords.
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  - Mason Wheeler (profile), 28 Mar 2013 @ 5:20pm
    
    Re: Re: We don't need to "fix the DMCA"
    OK, I'm confused here. You say you disagree, and then you go and agree with my point. That is exactly the way it would have to work under a Common Carrier system. If Viacom wanted a video taken down, they'd have to go after the person who uploaded it, not the site they uploaded it to. And the "safe harbor" law is what establishes the extralegal recourses of the "guilty until proven innocent" DMCA takedown system. Get rid of that and you fix the entire system.
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    - Anonymous Coward, 29 Mar 2013 @ 5:12am
      
      Re: Re: Re: We don't need to "fix the DMCA"
      I think it was more of the way you stated it. Safe harbor protects the ISP/Hosting company from direct lawsuits, without that companies would go after third party content.
      
      So in reality it's not such a bad thing, it just needs judicial oversight because of the myriad of abuses by both the public and publishing companies.
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- Anonymous Coward, 28 Mar 2013 @ 4:58pm
  
  Re: We don't need to "fix the DMCA"
  The DMCA is a collections of rules.
  
  One of them is the safe harbors, that is a pretty good one, would you like to repeal that?
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  - Mason Wheeler (profile), 28 Mar 2013 @ 5:16pm
    
    Re: Re: We don't need to "fix the DMCA"
    ...
    
    ...
    
    Did you seriously not just read what I wrote at all?
    
    Yes, I want the so-called "safe harbors" gone! The term is an Orwellian abuse of the language. They do nothing useful for the Internet. They do not keep anyone safe, and they don't protect anyone from liability; they actually create liability that would not exist in their absence, to say nothing of the extralegal abomination that is the DMCA takedown system--which is an intrinsic part of the "safe harbors." Why would any Internet user want to keep them around?!?
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    - Anonymous Coward, 28 Mar 2013 @ 6:30pm
      
      Re: Re: Re: We don't need to "fix the DMCA"
      Without the DMCA safe harbors, Google, ISPs and tons of other entities would be out of business tomorrow.
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      - That One Guy (profile), 28 Mar 2013 @ 6:44pm
        
        Re: Re: Re: Re: We don't need to "fix the DMCA"
        Yup, cause those safe harbors certainly kept Veoh, which has been ruled to be legal each and every time it's gone to court protected, so obviously they work great to protect websites from malicious lawsuits that could put them out of business. /s
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        Anonymous Coward, 28 Mar 2013 @ 7:21pm
        
        Re: Re: Re: Re: Re: We don't need to "fix the DMCA"
        Veoh WON their case because of the DMCA, you silly buffoon.
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        Anonymous Coward, 28 Mar 2013 @ 8:26pm
        
        Re: Re: Re: Re: Re: Re: We don't need to "fix the DMCA"
        They won themselves out of business. Truly winning.
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      - Mason Wheeler, 28 Mar 2013 @ 8:50pm
        
        Re: Re: Re: Re: We don't need to "fix the DMCA"
        Again, did you not read what I wrote? Without the safe harbors to create liability, Google, ISPs and tons of other entities would be in a much better place tomorrow then they are today.
        
        One company would end up getting sued at some point. They would go to court, their defense would be, "we operate as a common carrier. We have no liability for user-generated content, and the prosecution can go screw themselves." And they would win, and it would set a precedent, and that would be the end of that. No more DMCA takedowns, no more extrajudicial censorship as an end-run around the law, no more chilling effect due to the threat of DMCA liability.
        
        (And, also, no more net neutrality problems, as Common Carrier status would cover that too. Instead of trying to screw us over, all the ISPs would be scrambling to ensure they did a good job taking care of our data, or they would end up with liability issues due to *not* acting as a common carrier. Two birds with one stone.)
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Anonymous Coward, 28 Mar 2013 @ 4:52pm

The root cause is copyright, the aggravating rule is the DMCA.

Copyright erodes the right own something for everybody, the DMCA is just a symptom of that system.

This is exactly why copyright was so limited, is a monopoly, it is harmful to social and commercial interests, it causes great pains to everyone, and was exactly for that reason that it was so limited.

But as all competing interests is now the time to see it rise just to see it fall again.

Its rise will remind everyone why it was done the way it was, something people seem to have forgotten.

When they realize that what you thought you bought was really "the rights to some uses but not all uses" I want to see how people will justify that.
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- Anonymous Coward, 28 Mar 2013 @ 6:35pm
  
  Re:
  youtube.com/watch?v=xsZPWsVNTqo
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Anonymous Coward, 28 Mar 2013 @ 4:54pm

If I buy a hammer, and use it as a carpenter to make a living, I would be pissed if the manufacturer of that hammer came to my house and called me a thief and demanded a pay him more.

This is exactly what copyright does and people are slowly waking up to that little fact.
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out_of_the_blue, 28 Mar 2013 @ 5:15pm

Oooh, the Megaupload Mega-Malady has returned!
"Look at Megaupload. They bent over backwards to comply with the DMCA and go the extra mile to stay on the content industry's good side," -- Nice to see Techdirt's fanboys haven't learned anything at all about law or property rights or even practical facts of how DOJ can land on you like a ton of bricks.

Megaupload was simply grifting off infringing content, had to know it, and NEVER remitted a cent to those who made the content.

Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where Mike's "new business model" (file hosts like Megaupload) is to grift on income streams that should go to content creators -- and then call the creators greedy!
13:15:14[o-226-5]
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Anonymous Coward, 28 Mar 2013 @ 5:35pm

Furthermore, anyone who claims that we can't fix this part of the DMCA because of international obligations is really only demonstrating why IP issues shouldn't be a part of any trade agreement.

Good job trying to head me off at the pass. The reality is the reality, and completely unlikely to change. And whether it should or shouldn't be included in treaties is immaterial. It already is and will continue to be as old treaties are renewed and old treaties are pretty much modeled on existing ones.

Moreover, the House is more tied up with things that 99% of Americans find somewhat more urgent. Immigration reform, gun control, the deficit.... things more people care about more than your ability to freeload without restriction.
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- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 28 Mar 2013 @ 5:43pm
  
  Re:
  *new* treaties
  
  As an aside, why no CwF by including an edit function that people constantly clamor for. Ars Technica has a good one, you should freeload from them.
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- That One Guy (profile), 28 Mar 2013 @ 6:40pm
  
  Re:
  So correct me if I'm wrong, but your argument seems to boil down to 'it's a problem now, it always has been a problem, and it will always be a problem, so therefor we shouldn't try and fix it'?
  
  Awesome logic there. /s
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  - This comment has been flagged by the community. Click here to show it
    
    Anonymous Coward, 28 Mar 2013 @ 7:29pm
    
    Re: Re:
    No dufus. You guys said problem. I said reality.
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    - Anonymous Coward, 29 Mar 2013 @ 1:39am
      
      Re: Re: Re:
      So we agree that the reality created by copyright is a problem.
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- JEDIDIAH, 28 Mar 2013 @ 6:46pm
  
  Media mogul newspeak
  Individual personal property rights are something that everyone cares about. They just don't realize what your virtual land grab is all about. They take your rhetoric about "freeloading" at face value when nothing could be further from the truth.
  
  Now that you robber barons are being more blatant about things, people are waking up to the issues.
  
  People may not care about art, but they do care about their phones.
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Anonymous Coward, 28 Mar 2013 @ 5:41pm

BTW, I see that the usual group of feckless malcontents signed the letter- including Floor64 (though not Masnick personally). It seems you missed Gorehound and Art Gorilla, otherwise the list of signatories is pretty impressive and will undoubtedly sway Chairman Goodlatte.
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bob, 28 Mar 2013 @ 5:45pm

They're not public interest groups, they're company interest groups
All of these public interest groups are heavily funded by the companies that have gotten rich off of pushing the limits on copyright and abusing the concept of fair use. So naturally they're lobbying for something that will make their paymasters richer.

It's a mistake to call them "public interest groups" because they're doing this in the companies's interest.
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- Anonymous Coward, 28 Mar 2013 @ 6:12pm
  
  Re: They're not public interest groups, they're company interest groups
  Even if it's corperate interst groups fixing the DMCA is a benefit of the public. For example, the anti-circumvention clause prevents you from legally playing store bought DVDs on anything other than a select number of licensed player while the pirates the clause was intented to effect continue to pirate
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  - Anonymous Coward, 28 Mar 2013 @ 6:40pm
    
    Re: Re: They're not public interest groups, they're company interest groups
    If I create something, I decide how it can be used; unfortunately only for a limited time. If you don't like the few meager rights that protect me and my unique abilities, I suggest you go pound sand.
    [ link to this | view in chronology ]
    - JEDIDIAH, 28 Mar 2013 @ 6:54pm
      
      Re: Re: Re: They're not public interest groups, they're company interest groups
      > If I create something, I decide how it can be used
      
      Nope.
      
      Once you sell it, then it isn't yours anymore.
      
      Those property rights that you love so much only work if they are applied equally to everyone.
      
      So you aren't just cutting off the branch you are sitting on, you're taking a chain saw to the trunk of the entire tree.
      
      You are not a special or unique snowflake. You don't get special treatment. The rights that you are hallucinating don't exist.
      
      You have a monopoly on making and distributing copies.
      
      That's it.
      
      You're the one that gets to pound sand.
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      - Anonymous Coward, 28 Mar 2013 @ 7:14pm
        
        Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        You are not a special You don't get special treatment.
        
        Yes I am and yes I do.
        
        I can do special things that only a very few amount of people can do. That's why I'm protected.
        
        I'm aware that you have a difficult time coping with the fact that you're not special, but that's not my problem.
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        Anonymous Coward, 29 Mar 2013 @ 1:43am
        
        Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        If trolling is a special thing than I want my money too.
        
        Not even big pharma get the crazy of copyrights and they tried.
        
        Are you more special than a bioengineer?
        
        Aircraft engineers?
        Auto engineers?
        
        They don't get to go charge others after they sold something, why should you?
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        Gwiz (profile), 29 Mar 2013 @ 7:44am
        
        Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        Yes I am and yes I do.
        
        I can do special things that only a very few amount of people can do. That's why I'm protected.
        
        So are Master Plumbers.
        
        But they don't get to collect payment every time someone flushes the toilet.
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        Anonymous Coward, 29 Mar 2013 @ 11:26am
        
        Re: Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        You're not making any sense. Creators get paid for each unique sale or use. No different than a plumber.
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        Anonymous Coward, 29 Mar 2013 @ 11:40am
        
        Re: Re: Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        I'd like to see plumbers being paid 70 years after death.
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        Anonymous Coward, 29 Mar 2013 @ 2:42pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        Mario and Luigi will get screwed by Nintendo, you just watch.
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        Gwiz (profile), 29 Mar 2013 @ 12:37pm
        
        Re: Re: Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        Creators get paid for each unique sale or use. No different than a plumber.
        
        Really? So for each unique person you allow to use your toilet you send a royalty check to your plumber for remainder of his life plus 70 years?
        
        It's very different. Plumbers get paid once for work completed and then move onto the next job. If plumbers had protection like copyright, then they could install one toilet, rest on their laurels and collect money each time that toilet gets used.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 29 Mar 2013 @ 7:46am
        
        Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        Self-delusion is hardly special.
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      - Anonymous Coward, 28 Mar 2013 @ 7:27pm
        
        Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        Hey Uncle Jed,
        
        Try that line of reasoning with the Ninjavideo judge.
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    - Anonymous Coward, 28 Mar 2013 @ 7:13pm
      
      Re: Re: Re: They're not public interest groups, they're company interest groups
      Publishers create their books to be read, yet people stick them under wobbly tables, place them on top of loose sheets of paper, sit on them to appear taller, and throw them at annoying pricks who don't get the point. Should these additional uses be banned because the people who created them lacked the vision to see them?
      [ link to this | view in chronology ]
      - Anonymous Coward, 28 Mar 2013 @ 7:15pm
        
        Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        You're confusing content with delivery medium, aren't you?
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        saulgoode (profile), 28 Mar 2013 @ 9:25pm
        
        Re: Re: Re: Re: Re: They're not public interest groups, they're company interest groups
        But that is what the DMCA anti-circumvention provision does: ignores the content but prohibits accessing the delivery medium.
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    - cpt kangarooski, 28 Mar 2013 @ 7:42pm
      
      Re: Re: Re: They're not public interest groups, they're company interest groups
      If I create something, I decide how it can be used
      
      "Use" is not one of the exclusive rights granted to copyright holders, so no, you're wrong. The owner of a specific copy has rights as to how it is used, but owners are not necessarily the same people as creators, nor vice versa.
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    - Anonymous Coward, 29 Mar 2013 @ 2:11am
      
      Re: Re: Re: They're not public interest groups, they're company interest groups
      So after you kick the bucket, how're you going to decide for the next seventy years?
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- Anonymous Coward, 28 Mar 2013 @ 6:25pm
  
  Re: They're not public interest groups, they're company interest groups
  Sorry, I usually precede "public interest groups" such as those on the letter with "so-called". I regret the error.
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- That One Guy (profile), 28 Mar 2013 @ 6:37pm
  
  Re: They're not public interest groups, they're company interest groups
  '...companies that have gotten rich off of pushing the limits on copyright and abusing the concept of fair use.'
  
  Huh, I wasn't aware the movie and music industries were funding these groups. Learn something new every day it seems.
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  - Anonymous Coward, 28 Mar 2013 @ 6:53pm
    
    Re: Re: They're not public interest groups, they're company interest groups
    Oh, look who's been up late trying to think of something witty. Back the lab, numb nuts.
    [ link to this | view in chronology ]
    - JEDIDIAH, 28 Mar 2013 @ 6:55pm
      
      Re: They're not public interest groups, they're company interest groups
      Artists are the biggest benefactors of creative capital.
      
      ...Steve Jobs had a nice saying he liked to us. He stole it from Piccaso I think.
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    - Anonymous Coward, 29 Mar 2013 @ 3:59am
      
      Re: Re: Re: They're not public interest groups, they're company interest groups
      Witty? It's the undisputable truth.
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- Anonymous Coward, 29 Mar 2013 @ 11:51am
  
  Re: They're not public interest groups, they're company interest groups
  Abusing the concept of fair use? Pray tell, how is 'fair use' being 'abused'? Or is this yet more hyperbole from you?
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Anonymous Coward, 29 Mar 2013 @ 2:55am

the easiest way to get Congress to at least investigate this complete screw up of a law is find something that they have 'bought', then explain to them, in pictures if necessary, that they have only bought a license, that they didn't actually buy the item, that they cant change any part of that item, cannot share any part of that item and cant pass it on, whether for free or in a garage sale or in a part- exchange deal. perhaps if they actually were made to realise the extent of the restrictions that they put into the DMCA and howe it affects them and their family members, perhaps then they will be prepared to listen. if you go down the normal routes (unless you are prepared to pay each member a gazillion dollars!) of trying to just talk and convince how bad this bill has always been, you are not going to win, because those behind it originally will be out in droves to keep it going. as for the last part, 'IP issues shouldn't be a part of any trade agreement' this is the only reason there are ever any 'trade agreements'! the USA doesn't give a shit about anything else, anyone else or the other items. has that not yet dawned on you?
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