DMCA Exemptions Don't Matter

sbma44 followed up to the recent news that jailbreaking iPhones is now legal with an article about DMCA exemptions. He says "The American Prospect has an article up that argues that focus on specific DMCA exemptions is silly, the practical upshot is about zero, and the underlying law remains as rotten as ever."

Comments

My first response as well

[OrangeTide]

I had the same reaction myself. These kinds of laws just need to die.

Re:My first response as well

[bit9]

When I look at the current state of IP law, the one thing that always strikes me is how far we've fallen since the Sony vs. Universal case in 1984. That wasn't that long ago, and yet in that relatively short amount of time, IP law has done a complete 180-degree turn. Well, seemingly, anyway - I'm sure if I went back and looked closer, I would probably find that things weren't quite as clear cut in 1984 as it felt like they were. Nonetheless, to go from having SCOTUS declare that timeshifting == fair use to having a federal law that criminalizes fair use (which is essentially what DMCA does, since you have to circumvent CSS et all these days in order to exercise your fair use rights) in such a short time is something I find difficult to wrap my mind around.

Re:My first response as well

[Thinboy00]

IIRC Universal v. Reimerdes (the DeCSS case) failed to consider First Amendment and Fair Use, instead focusing on the fact that DeCSS itself was not intended for fair use. If they went after e.g. libdvdcss, they would IMHO (IANAL) be forced to overturn the DMCA due to those issues.

Re:My first response as well

[hedwards]

First off CSS isn't protected by the DMCA, it fails to be effective or a copy protection measure. Subsequently the anti-circumvention shouldn't apply in the first place. Secondly, it is neither reasonable nor non-discriminatory. One of the big drivers of DeCSS was the fact that there were no options for many platforms at all. If you use Windows or Mac, fine there's plenty of options, but FreeBSD for instance doesn't as far as I know have one even now that isn't based upon DeCSS.

Secondly, it's an effort to control what players can play the media, not who can make copies, and that's important, even without DeCSS it was trivial to make a copy of a DVD, it would just be bitwise identical to the original including CSS and any region coding.

Re:My first response as well

[TrisexualPuppy]

Nay, let's just focus on the facts.

We are in a political quagmire and should take any means necessary to protect our common interests. DMCA exemptions are basically our wedge into the crack, and if we hammer enough wedges, we can make the crack that much bigger. The exceptions really are our best bet right now.

Re:My first response as well

[schon]

First off CSS isn't protected by the DMCA

The legal system disagrees with you. Seeing as they are y'know lawyers and judges, I hope you won't be offended that I believe them over you.

it fails to be effective

Incorrect. It may be ineffective from a technical perspective, but it clearly qualifies as effective under the definition in the DMCA.

or a copy protection measure.

Mu. It doesn't need to be a copy protection measure - it needs to "prevent access" - which it does.

Subsequently the anti-circumvention shouldn't apply in the first place.

Incorrect.

Secondly, it is neither reasonable nor non-discriminatory.

Which is pretty meaningless. Under the DMCA, technological measures have no such requirements. In fact, when addressing the issue of "I can't play these movies on my OS of choice", the Copyright office said that argument was the equivalent of demanding VHS systems play Betamax tapes.

There is a practical upshot

[Anonymous Coward]

Any developer who wants to work on jailbreaks and do so publicly, with presentations and writing, can do so without fear of prosecution. Companies can also now get involved without fear of supporting something illegal. If Mozilla wanted to release a Firefox for the the jailbroken iPhone, they now can.

What do they say a phone is? any thing that can be

[Joe The Dragon]

What do they say a phone is? any thing that can be used as one? any thing with a phone jack? / slot for a modem?

How far does jail breaking go? How about using a PAYED FOR COPY OS X on any pc?

Re:Screw CSS

[Anonymous Coward]

The average citizen does not understand or particularly care about esoteric copyright concerns, which is why there isn't a widespread outrage over the DMCA outside of the computer nerd subculture.

Besides, it wasn't all bad; the anticircumvention part is pure bullshit but shielding service providers from responsibility of their users infringement was a pretty good idea.

Re:Much More To The Point

[BassMan449]

The problem is that the law states otherwise. Technically this ruling should be sound as what we call "fair use" is simply the First Amendment restricting copyright. However, it is still very possible this ruling could be overturned. DMCA 1201 (a)(3)

(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;

By the reading of the law, circumvention, even for fair use, is illegal. The only way around that is through the First Amendment and "fair use". But "fair use" is only a defense if you are actually sued so even with this ruling it is still likely illegal and you could still get screwed by one judge with a different interpretation.