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More Unintended Consequences of the DMCA
BrianWCarver writes "In the seven years since Congress enacted the Digital Millennium Copyright Act (DMCA), examples of the law's impact on legitimate consumers, scientists, and competitors continue to mount. A new report released today from the Electronic Frontier Foundation (EFF), 'Unintended Consequences: Seven Years Under the DMCA,' (pdf) collects reports of the misuses of the DMCA -- chilling free expression and scientific research, jeopardizing fair use, impeding competition and innovation, and interfering with other laws on the books. The report updates a previous version issued by EFF in 2003, which Slashdot also covered."
Fair Use Under Siege "Fair use" is a crucial element in American copyright law-the principle that the public is entitled, without having to ask permission, to use copyrighted works in ways that do not unduly interfere with the copyright owner's market for a work. Fair uses include personal, noncommercial uses, such as using a VCR to record a television program for later viewing. Fair use also includes activities undertaken for purposes such as criticism, comment, news reporting, teaching, scholarship or research. Unfortunately, the DMCA throws out the baby of fair use with the bathwater of digital piracy. By employing technical protection measures to control access to and use of copyrighted works, and using the DMCA against anyone who tampers with those measures, copyright owners can unilaterally eliminate fair use, re-writing the copyright bargain developed by Congress and the courts over more than a century.
What bothers me is that things like this cause people to think that there is no such thing as fair use. I work as a teacher and I make a bunch of presentations for my classes. It's school policy that we can't use copyrighted images for any purposes -- even this clear cut case of non-comercial, educational use. This policy is just one of the many in place to eliminate even the possibility that someone may sue for any reason, no matter how in the right we may be. I'd use creative commons images anyway, but this is very frustrating.
-CGP
I thought I'd pop in a quick comment to beat the rush.. I've barely scanned through the document, but I've already noticed obvious and glaring errors.
For example, they cite the case of Adobe's claim that Nikon prevented them from decrypting their RAW format files. The facts as the EFF documents explains them, are just plain wrong. There was a brief outcry from some overwrought programmers at Adobe over this issue, but it turned out Nikon was always willing to license their proprietary code to developers like Adobe, even before this little dust-up. Nothing to see here, move along, it was just another testy outburst from a programmer who had too much coffee and didn't want to wait for his managers to finish negotiations with Nikon.
I'll go through the document in more detail, and I'm sure I'll find more deliberate misstatements of facts. The EFF always trumps up charges to inflate its case. Perhaps someday they will learn that this tactic undermines their efforts.
That article is over 3 years old, despite recently being on the digg front page, and is a journalist's sensationalist mis-interpretation of proposed legislation.
The actual text of the bill draft reads:
"A person commits an offense if, with the intent to harm or defraud a communication service, the
person tampers with, modifies, or maintains a modification to a communication device provided by or installed by the provider"
I always thought that there was a legal right to be able to make a copy of a dvd for your own use
IANAL but I have heard that, yes, we do have this right in the US. The problem is it is legal for us to make a backup copy yet illegal to bypass the encryption of the DVD which of course is needed to be done first to make the legal backup copy. I prefer to make backups and then put the originals away in case something happens to the backup and it is a shame that it is illegal to do that. The only way I will stop making backups is if they come up with a way to make that impossible for me to do and/or if they work out a system that allows damaged discs to be returned for new working copies (which I highly doubt would ever happen). Trading in a damaged disc actually should be something they would agree with since we only buy a license for the content right? I would even be willing to pay a buck or two to cover the cost of making and shipping the disc, of course they would much rather have us repay the full price everytime we lose/damage the discs though which is insane if we aren't allowed to make backups.
Hey, there is only one Return and it's not of the King, it's of the Jedi.
All you have to do to copyright your blog postings is put a claim of copyright and terms of distribution notice at the bottom of your page, then if someone rips your work off, without crediting you, sue their ass. You can even say under what circumstances the work is free to use, and when people would have to pay you.
All this is in existing copyright law. No need for the DMCA whatsoever.
Shiny. Let's be bad guys.
Before the DMCA (and in fact even after the DMCA, it is just that the DMCA broadened the terms) to have the full protection of copyright law, you either had to file for a copyright with the copyright office, or the work had to be published with the markings you mention (which pre-DMCA did not specifically include the Internet, or any electronic form, but rather published in the sense of having to go through a printing press, and be distributed), in order to be considered a copyrighted piece of work. If you just had some piece of artwork, or a photo, or a script, and were just showing it around your local coffee shop, or had it up on your personal webpage, then you had no guaranteed legal recourse under copyright law, since you could not prove publication, no matter how many little ©s you had on the piece. If you played a little ditty you came up with while sitting at the park, anyone who heard it could steal it, unless you had published sheet music for it. That changed with the DMCA. Copyright was changed to take effect at the moment of creation, not at the moment of publication, and the web and digital files were now considered to be a form of publication as well.
All of these are huge changes that pretty much made the viability of commercial web pages a reality, and made the situation much better for the proverbial starving artist. Of course, most people talking about the evils of the DMCA aren't professional artists, and so haven't had to deal with the pre-DMCA world where a client could end up owning your work, just because they were the one who paid for the ad where it was first published. In fact, most people railing against the DMCA don't know the first thing about copyright law, because they have never had to deal with it in the slightest. They just know that it is that evil thing that makes your printer cartridges more expensive, and that keeps you from being able to copy your friends software and movies for free.
The reason I find the bloggers more humorous than everyone else, is because they just take it as a given that everything scribble on their page is their's to do whatever they want with, and don't realize that the only reason they don't have to constantly worry about copyright law, is because the DMCA they hate so much made it so much easier to deal with copyright.
Why does the EFF not defend your Second Amendment rights? Because that's not part of what they do, AND it's already taken care of! There already is a large and very powerful organization known as the NRA. If you're having problems with your Second Amendment rights, call them, they'll be happy to help you with those. If you're having problems with other civil rights, call the ACLU. They'll help you with those problems. If you're hungry, call your local pizza place. They'll help you out in that case. What's wrong with not being everything to everyone, when it's already taken care of by a -more- specialized organization very competent to deal with that issue?
By the way, what is this about the ACLU being the "mouthpiece for the ultraleft"? The ACLU defends all comers whose civil rights have been violated. Granted, minorities' rights tend to be violated more frequently, whether that be gays, blacks, or those with non-mainstream political philosophies. This means that the ACLU will most often be defending those on the fringes-that's not out of their choice, it's because those are the people who will the most frequently need the defending. But the ACLU will defend (and has defended) the right of people to hold Bible studies in public parks at the same time they fight religious language in the Pledge of Allegiance. No contradiction here-the government must stay neutral on religious matters, neither cheerleading nor getting in the way for any particular religion or religion in general. Same for any other matters-one imagines if the government forced Rush Limbaugh off the air tomorrow, the ACLU would scream the first and the loudest, same as if it were Howard Stern. (What Limbaugh's feelings would be on that are another matter entirely.) Howard Stern's simply more likely to see it happen to him.
To fight the war on terror, stop being afraid.
I want to agree with the assessment but this "study" isn't from a neutral third party so it must be taken with a grain of salt.
Unfortunately, you are mistaken. Those huge changes you're talking about were already enacted in the Copyright Act of 1976. DMCA did not change the moment when a work is considered to be under copyright protection.