[HN Gopher] Ask HN: Why has DMCA Circumvention Prohibition not b...
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Ask HN: Why has DMCA Circumvention Prohibition not been repealed?
I understand the high level reasoning is "government corruption",
but I'm trying to understand what efforts have been made to allow
people to rip their own lawfully purchased media. Are any
congresspeople fighting to repeal this section of the DMCA? Has any
legislation been proposed? Which senators are most firmly
advocating for this overt MPAA rent seeking? Why is this not as
popular as "right to repair" considering how many more people this
impacts? This is a pretty wide-open question, so anything people
can add to help me understand this history of this conflict is
welcome. For those who don't know, Section 1201 makes it illegal
to break any DRM or to make or distribute software useful for this
purpose. The effect is that people who have a valid license to the
content must pay over and over to consume that content (once for
blu-ray, once for Apple TV, once for Amazon, etc).
Author : throwaway894345
Score : 55 points
Date : 2022-04-18 16:30 UTC (6 hours ago)
| mikece wrote:
| Circumvention Prohibition is is likely a measure which has some
| legitimate uses which justify its inclusion in law but is applied
| to many things as a technicality to limit consumer freedom where
| essential IP/competitive advantage is not harmed by circumventing
| what is being blocked. It would be better to amend the law with
| guidance describing the difference between illicit and licit
| application of circumvention protection. Using this clause as a
| broad-spectrum way to block Right To Repair is illegitimate.
| jstanley wrote:
| What legitimate uses can you imagine?
| bregma wrote:
| Regulatory capture of the industry by invested interests.
| It's completely legit, it even says so in the regulations.
| rolph wrote:
| allowing the restoration of your property to the state of
| functionality that was present when you agreed to pay for the
| product. in other words level the playing field and prevent,
| the prevention or reversal of a property owners right to
| maintain thier property
|
| to wit: manufacturers should be restricted from circumventing
| repair or configuration
| jstanley wrote:
| That's a legitimate use of circumvention, not a legitimate
| use of circumvention _prohibition_ which is what my parent
| comment was talking about.
| zzzeek wrote:
| > considering how many more people this impacts?
|
| people who want to repair their laptops is likely a lot more
| people compared to those capable and interested in running anti-
| DRM software so that they can get hardcopies of movies from Apple
| TV.
|
| legislation that _would_ impact a lot of people and be a big deal
| would be requiring the various streaming providers to allow
| transferring someone 's purchased content between platforms for
| free or significantly discounted price. that is, a law which
| allows anyone to pay for their content only once would impact
| hundreds of millions of consumers, rather than a law that lets
| relatively few technically sophisticated users bypass their DRM.
| The difficulty in gaining support for such an idea should be
| fairly self evident.
| otterley wrote:
| Because of all the things the electorate cares about, DMCA reform
| is near the bottom of the list. People are largely happy with the
| status quo where they can pay a few bucks a month and stream
| music and TV to their heart's content.
|
| And if a threat to this regime were to seriously arise, the
| entertainment and software industries -- which are both still
| some of the highest-growth industries in the country - would take
| notice and scream bloody murder. These industries employ millions
| of Americans (including many people who frequent HN) and generate
| billions in revenue, and they aren't going down without a fight.
| rayiner wrote:
| > I understand the high level reasoning is "government
| corruption"
|
| Then you don't understand. I know a lot of (non-tech) liberals.
| If you polled them, most would probably support getting rid of
| the anti-circumvention provision, if you explained to them what
| it was actually about. Many probably wouldn't, though--they like
| Disney+, Netflix, etc. But not a single one would spend the
| smallest amount of political capital to change the law.
|
| Talking about this in terms of "corruption" is not helpful to
| understanding. The fact is that when you have a highly technical
| issue like this, most politicians will only understand it deeply
| enough to slot it into one of their high-level mental buckets. In
| this case, it's probably something like the "whiney consumer
| organizations versus job creators" bucket.
|
| That's why it's not just a money issue. In the 2020 election
| cycle, the MPAA spent $224,018 on campaign contributions, and
| about $3.3 million on lobbying. The latter is mostly paying
| lawyers to put together PowerPoint presentations to political
| staff members telling them how to vote on particular issues. An
| author on Kick Starter recently raised over $20 million for some
| Sci Fi books: https://www.cnbc.com/2022/03/04/brandon-sanderson-
| kickstarte.... You could outraise the MPAA easily. But you'd
| never persuade a politician to vote differently on the issue than
| the bucket they were going to vote for anyway.
| car_analogy wrote:
| _The film industry made a record-breaking $100 billion last year_
| - https://www.forbes.com/sites/rosaescandon/2020/03/12/the-fil...
|
| The fault lies with us. Do you pirate? Abstain from entertainment
| media? Or do you fund lobbying efforts to keep circumvention
| illegal? The numbers in the Forbes article suggest most do the
| latter.
| jedberg wrote:
| This isn't really a good argument though. We live in a society
| and society is defined by our shared cultural experience. For
| better or worse, these media companies in large part define our
| cultural experience. Humans are social creatures, and naturally
| want to participate in a shared cultural experience.
|
| Asking people not to consume media would be like asking them
| not to converse with other humans or not have sex. Sure, you
| _can_ survive without those things, but it 's not really a life
| worth living.
| rayiner wrote:
| Why am I not surprised that someone who thinks Hollywood
| movies are part of "our shared cultural experience" also
| thinks that not having sex makes live not worth living.
| jedberg wrote:
| Actually what I said was telling someone who enjoys sex to
| not have it makes their life miserable.
| car_analogy wrote:
| Then pirate. Call it "civil disobedience" if you're the type
| that enjoys flattering euphemisms.
| jedberg wrote:
| Some people believe that part of living in a society is
| following its laws and using lawful means to change the
| law.
| noasaservice wrote:
| Laws != ethics
|
| And simply put, my vote does not matter. The similar
| chucklehead gets put into office, and does the will of
| the monied elite. And yes, I do vote, as little as it
| matters.
|
| https://www.vox.com/2014/4/18/5624310/martin-gilens-
| testing-...
|
| I'm not a millionaire. I have no PAC's to my name. I do
| not hire or otherwise fund lobbyists. So, my only time to
| exert any sort of control on this system is to vote. And
| congress (state AND national) has only about a 3% parity
| with what I vote. Had I been in the monied interests
| category, I would get about 75% of what I wanted.
|
| So indeed, piracy it is. Reverse engineering and talking
| how I did it is. Sharing "illegal number" it is. I have
| no other course of action.
| rayiner wrote:
| Convince yourself that consuming for free a completely
| optional entertainment product that someone else created
| from their own labor is "ethics."
| car_analogy wrote:
| Media conglomerates don't concern themselves with ethics
| when they lobby to strip you of more of your rights. But
| they're grateful that you continue funding their efforts
| in the name of ethics.
| tptacek wrote:
| s/lobby to strip you of more of your rights/set their own
| terms on how they want to sell the products of the labor
| they acquired.
|
| Pirates are empirically no more merciful of content
| distributed on more egalitarian principles and outside of
| "major label" distribution channels. The root of the
| phenomenon is acquisitiveness, not ethics. It's just fun
| to back-rationalize the behavior, especially in places
| (like HN) where the audience is largely dismissive of the
| underlying ethics.
| car_analogy wrote:
| Then you're left with only one option, aren't you?
| Continue doing the same thing, hoping for the opposite
| result it has had so far.
| dannyobrien wrote:
| Zoe Lofgren has, for the last decade, regularly led Congressional
| work to mitigate the damage of DMCA 1201. (See this one from a
| few years back https://www.eff.org/deeplinks/2017/02/fair-use-
| consumer-prot... ). EFF currently has a project, Apollo 1201, led
| by Cory Doctorow, to seek legal challenges to the law.
|
| It can be hard, because 1201 is an implementation of an
| international treaty, the 1996 WIPO Copyright Treaty, which
| requires language on anti-circumvention technology. The Treaty
| was passed after language similar to 1201 failed to get traction
| in the US Congress before '96. Treaties, in theory, trump
| domestic legislation, in that the US has made a commitment to
| honor the treaty, so the law is meant to reflect that commitment.
|
| However, the treaty itself only specifies that "Contracting
| Parties shall provide adequate legal protection and effective
| legal remedies against the circumvention of effective
| technological measures that are used by authors in connection
| with the exercise of their rights under this Treaty or the Berne
| Convention and that restrict acts, in respect of their works,
| which are not authorized by the authors concerned or permitted by
| law."; DMCA 1201 goes much further than that. So that we can
| imagine a fix to the law that returns the US to a more balanced
| implementation of this language.
|
| However! The United States has _also_ entered into a number of
| bilateral treaties with other countries, requiring them to also
| implement DMCA 1201 language, and many states have just cut-and-
| pasted the 1201 language as part of their compliance with the
| Copyright Treaty. The EU has similar requirements on its member
| nations: https://en.wikipedia.org/wiki/Anti-circumvention
|
| You might want to read some of EFF's historic reports on the
| development of the law: https://www.eff.org/wp/unintended-
| consequences-under-dmca/ar...
|
| Politically, there's been a concern for a number of years that
| re-opening the DMCA might lead to worse outcomes: ironically, the
| strongest advocates for revisiting or repealing the DMCA has come
| from the rightsholders, who feel they have an opportunity (given
| the tech backlash) to draft an even more draconian law. So I
| think that opponents of DMCA 1201 have mostly fallen back to
| advocating for stronger exceptions under the triennial copyright
| office review of the law, https://www.techdirt.com/tag/triennial-
| review/ where individuals and companies can push for specific
| exceptions to the blanket ban. This is where you'll have seen
| legal permission for filmmakers, videogame archivists, etc.
| coldpie wrote:
| > This is where you'll have seen legal permission for
| filmmakers, videogame archivists, etc
|
| An excellent podcast on that very topic (with some links to
| further reading):
|
| https://gamehistory.org/ep-59-dmca-exemption-ruling/
| schoen wrote:
| Hey Danny!
|
| > So I think that opponents of DMCA 1201 have mostly fallen
| back to advocating for stronger exceptions under the triennial
| copyright office review of the law,
| https://www.techdirt.com/tag/triennial-review/ where
| individuals and companies can push for specific exceptions to
| the blanket ban.
|
| A sad thing about this strategy is that the triennial review
| exemptions are only allowed to exempt acts and not tools (that
| is, the Copyright Office can allow people to circumvent, but
| not allow people to publish software that helps other people
| circumvent). And then also that the exemptions don't autorenew,
| but rather expire after three years and have to be argued for
| again.
| dannyobrien wrote:
| Hey Seth!
|
| It's true! In the 2000s (when Seth and I first started at
| EFF), the general feeling in the community was that the
| triennial review process was far too weak for permanent,
| effective change -- for the reasons given above, and more.
| There was serious consideration given to boycotting the
| process entirely. But as digital technology spread, and more
| of the world fell under 1201 (from garage openers to
| tractors), it became clear that we had to do everything --
| from pushing for exceptions, to advocating for changes in the
| law, to litigation and challenging 1201's restrictions on
| speech under the first amendment.
|
| I hope I'm not sounding gloomy here -- there are still plenty
| of routes to reform 1201, but for now, direct repeal or
| revision of the language in the DMCA is going to be quickly
| overtaken by lobbyists trying to use it for even more
| pervasive digital copyright law, and to rewrite the
| intermediary liability/takedown language in the DMCA.
| car_analogy wrote:
| > There was serious consideration given to boycotting the
| [triennial review process] entirely. But as digital
| technology spread, and more of the world fell under 1201
| (from garage openers to tractors), it became clear that we
| had to do everything
|
| Are you sure this is the best strategy? The review process
| seems designed as a safety valve - ameliorating the worst
| short-term consequences of the law, to prevent the build-up
| of frustration, motivation, and technical means (e.g.
| businesses relying on an exemption) that might produce any
| meaningful change. It is the red cape keeping the bull
| distracted, while the matador slowly jabs the bull to
| death.
| dannyobrien wrote:
| I'm not sure at all, and this is the core of the debate.
| It's really a co-ordination problem: boycotting the
| triennial proceedings would require a unanimous action,
| in the face of increasing damage by 1201. So when I say
| "it became clear", it's not so much that the strategy was
| clearly better, but the calculation between a principled
| boycott and pragmatic involvement shifted.
| theandrewbailey wrote:
| > that is, the Copyright Office can allow people to
| circumvent, but not allow people to publish software that
| helps other people circumvent
|
| Publish source code in book form.
|
| https://en.wikipedia.org/wiki/Bernstein_v._United_States
|
| https://en.wikipedia.org/wiki/Junger_v._Daley
| dannyobrien wrote:
| I know that you meant this more generally, rather than a
| direct response to Seth Schoen, but I'll just note that
| Seth is semi-famous for doing just that, with the DeCSS
| Haiku: https://en.wikipedia.org/wiki/DeCSS_haiku
|
| While the Bernstein case is a great victory, there's also
| the 2600 case in the Second Circuit:
| https://supreme.findlaw.com/legal-
| commentary/why-2600-magazi...
| nonrandomstring wrote:
| > effective technological measures that are used by authors
|
| Not in our name, please! Over many years in the creative
| business, music, games, writing, film, I've barely met a single
| soul who gave a rotten rat's arse about _technological measures
| that are used by publishers and distributors_.
| dannyobrien wrote:
| Whether you like it or not, these laws are being passed in
| your name by regulators, standards bodies, lawmakers and
| lobbyists. But things can change.
|
| So after this treaty passed at WIPO (with the language you
| quoted), a bunch of incredibly dedicated activists, including
| folks at EFF, Knowledge Ecology International (KEI), Public
| Knowledge, IP Justice, and many others hidden away on this
| list
| https://www.wipo.int/members/en/organizations.jsp?type=NGO ,
| worked to wrench WIPO from being exclusively a policy-
| laundering venue for rightsholders, and have some
| representation from the folks you describe. I'd say it's a
| better place for it -- but of course that meant that the
| efforts to lock-in stronger IP language moved to more opaque
| venues, including trade treaties. They're still doing the
| work, but they need far more support and collective advocacy
| for those who believe in what they're doing. You might not
| give a rat's arse, but there's a lot of people on the other
| side of this argument that do, and employ people to push for
| these laws in every possible venue.
| nonrandomstring wrote:
| > They're still doing the work, but they need far more
| support and collective advocacy for those who believe in
| what they're doing.
|
| As a writer, where do you think I can best use my talents
| to fight WIPO and others who presume to speak on my behalf
| Danny? I have approached the EFF before, asking if they'd
| be interested in articles on areas that _are_ in my
| repertoire, but clearly this is for "specialists" and I
| know the square root of sod-all about international
| copyright. But I do know that these people are misusing my
| professional identity by claiming to know what "authors"
| want.
| dannyobrien wrote:
| I'd reach out to the Authors Alliance
| https://www.authorsalliance.org/, which seeks to
| represent creators, and is pretty good on these issues.
| R0b0t1 wrote:
| It is allowed in specific circumstances, namely you own the
| rights to the work you are breaking out or are a researcher. The
| interpretation of the law that cause GitHub takedowns is overly
| restrictive and not right.
|
| In theory if you are deprived of your ability to access a paid
| for work you can sue. The problem is, as you might expect, this
| usually happens once the company is defunct.
| [deleted]
| hedora wrote:
| Regulatory capture. There's lots of money in running third party
| repair shops, and the incumbents in that space lobby congress.
|
| For anti-circumvention, libraries would be the main
| beneficiaries, and they don't do much lobbying.
| roastedpeacock wrote:
| Another disturbing issue is the 'laundering' of DMCA analogues
| into other countries through trade-deals and other extra-
| political processes, with the general apathy and sweeping under
| the rug that precedes these changes.
|
| While not directly related to anti-circumvention, the only recent
| positive development in the user-rights of proprietary software I
| can recall is an EU case by a private software vendor against the
| Belgian government in that courts ruled that reverse-engineering
| and patching of 'issues' in legitimately obtained software was
| not a crime and therefore the plaintiff lacked a case, even when
| a license prohibition applied.
|
| Some persons were unconvinced of impact because defendant was
| Belgian government (they have taxpayers foot the legal bill) but
| the facts involved are not trivial because there have been cases
| with the reverse-engineering and patching of legitimately
| obtained video-games for purposes that are not piracy that did
| not end up with a positive outcome.
|
| I see the next decade going one of two ways. Big companies
| attempt to attach criminal liability to perceived violations of
| their licenses or the likes of anti-trust wake up and we see more
| reinforcement of user-rights similar to the EU case.
| heavyset_go wrote:
| Someone please correct me if I'm wrong, but I was under the
| impression that DMCA anticircumvention didn't apply to fair use
| of protected content. That's to say that it would probably be
| fair use to circumvent DRM, say, if a journalist wanted to
| include a short clip from a Netflix special as part of their
| reporting.
| zucker42 wrote:
| That's generally incorrect. Circumvention is generally illegal,
| regardless of if you're using it for otherwise legal
| activities. Below I've included the relevant text from the law.
| In that specific example, though, you might have an argument
| that enforcement of the anti-circumvention provision violates
| the first amendment, like in [1] (but IANAL so I have no idea
| if this has already been argued/settled). Connecting this to
| your fair use point, fair use is part of what keeps copyright
| enforcement from violating the first amendment, but it's
| unclear how the Supreme Court would rule such an issue if it
| came in front of them.
|
| > No person shall circumvent a technological measure that
| effectively controls access to a work protected under this
| title. The prohibition contained in the preceding sentence
| shall take effect at the end of the 2-year period beginning on
| the date of the enactment of this chapter.
|
| > (3) As used in this subsection-- (A) to "circumvent a
| technological measure" means to descramble a scrambled work, to
| decrypt an encrypted work, or otherwise to avoid, bypass,
| remove, deactivate, or impair a technological measure, without
| the authority of the copyright owner; and (B) a technological
| measure "effectively controls access to a work" if the measure,
| in the ordinary course of its operation, requires the
| application of information, or a process or a treatment, with
| the authority of the copyright owner, to gain access to the
| work.
|
| You can see how the law is written so generally as to arguably
| include almost anything under the definition of "technological
| measure".
|
| [1] https://www.eff.org/press/releases/eff-asks-appeals-court-
| ru...
| heavyset_go wrote:
| Thanks for the info.
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