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

[betterunixthanunix]

The DMCA is not going to die any time soon, and we need to accept that the battle was lost in 1998. Now we have to find a way to live with the DMCA and try to get as many exceptions to the anti-circumvention clause as possible, with a focus on the most relevant and pressing exceptions (jail breaking cell phones, freeing ebooks etc.). That, or we can try to get the majority of people to wake up and realize how their apathy has led to a situation where megacorps take advantage of them, and hopefully those people will actually do something about it -- I won't hold my breath though.

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

[MasterOfMagic]

When you go primarily from a content reproducer (Walkman, Discman, VHS VCR) to content producer (Sony Picture Studios, Sony Computer Entertainment), your view on fair use changes. Fair use is good when you are primarily a content reproducer as it ensures that people have a reason to buy your product. Fair use is no good when you are primarily a content producer as it gives people a reason to not buy another copy of your product.

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.

Screw CSS

[Pojut]

FTFA:

"...the exemption now specifically applies only to CSS, the technology used to encrypt DVD contents. There's no mention of AACS, the equivalent technology for Blu-ray discs, or of HDCP, the DRM system most likely to make installing your next TV a nightmarish ordeal"

The CSS portion of that is a HUGE positive. I would imagine that Blu-Ray and HDCP are too new to be considered for this kind of exemption...but knowing that I'm legally allowed to circumvent CSS is extremely noteworthy.

The CSS change and the "unlock phone for any network" change are both huge. WTF is the title talking about, that the exemptions don't matter? People have been wanting just those two for years.

Re:Screw CSS

[Anonymous Coward]

The CSS change and the "unlock phone for any network" change are both huge. WTF is the title talking about, that the exemptions don't matter? People have been wanting just those two for years.

The title is implying that whilst people have been wanting just those two for years, now that it has happened it's too little too late. In other words, it's pandering to public perception whilst pocketing from the industry, who are in fact looking to the next 3 years, not the last (Blu-ray, HDCP, and what have you).

Re:Screw CSS

[jedidiah]

This stuff matters for the reasons that the MPAA and RIAA complained about.

These exceptions carve out rights for individuals in a law that otherwise tries to screw individuals.

It's a far from ideal situation but it is a start.

Re:Screw CSS

[metiscus]

The author is arguing that the DMCA legislates to private citizens the disallowed behaviors that they have with technology devices that they have purchased themselves which may be necessary to simply use the device. The author disagrees with the premise that there should be laws that dictate to private citizens what they can do with their own technology. The final line in the article sums that point up pretty well:

"The exemptions are fine; they hardly matter. It's the fact that we need them at all that's the problem."

Re:Screw CSS

[Pojut]

Agreed, but downplaying successes, regardless of how small (or pandering) they may be, sounds very childish.

Too little, too late? I don't know about you, but my DVD collection is still an order of magnitude larger than my Blu-Ray collection.

Re:Screw CSS

[betterunixthanunix]

A great argument...and 12 years too late. The DMCA is already signed into law, and there is no indication that anyone with any power is going to repeal it. It enjoys the support of democrats and republicans, and both Presidents Bush and Obama are pushing for similar laws to be passed in other countries, as well as for the DMCA to be strengthened here in the USA. The likelihood that this law is going to be repealed or overturned is effectively nil, and that is a reality that we have to live with for the time being.

Exemptions are the new battle, and we need to get as many of them passed as we possibly can.

Re:Screw CSS

[metiscus]

The DMCA is another example of the widening disconnect between the citizenry and the special interest dollars that drive our politics, particularly with respect to matters of IP. I assert that, had the law been brought to a vote by the average citizen in terms of its implications, it would never have become law.

Re:Screw CSS

[AndersOSU]

Unless you're putting together movie clips for commentary, you're still not allowed to break CSS. The library of Congress didn't say you're allowed to break DRM for any fair-use purpose, they said you can break it in order to accomplish the following activities

the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

        (i) Educational uses by college and university professors and by college and university film and media studies students;
        (ii) Documentary filmmaking;
        (iii) Noncommercial videos.

You'll note that backing up your movies or shifting the media of your movies is conspicuously absent.

Re:Screw CSS

[BassMan449]

I think this is the wrong attitude to take. You are conceding that the special interests are too powerful to ever get this law overturned. While I agree that that is likely the case right now, if you aren't willing to fight against it that will never change.

Are Constitution/Government was designed to make it possible to recover from this situation. If we can elect the right people (much easier said than done), it is possible to take back control of our government. We just need people to start taking a more active role in politics. In order to get special interests out of politics we need the electorate to be more responsive. If we can stop bad politicians from being able to get re-elected simply by out-spending any alternatives then we could make the money less important.

Re:Screw CSS

[Eponymous Coward]

Just because it hasn't hindered you, doesn't mean it hasn't for anybody.

A lot of HDTV early adopters have been burned because the first generation sets don't support HDCP. So, even though your TV can do 1080p, your PS3 won't.

You can argue if that's really hindering anything since it will still play at a lower resolution, but I still think it sucks. It certainly curbed my urge to be an early adopter of anything now.

And it certainly did make piracy more difficult. Without HDCP, it would be almost trivial to make a signal capture device to capture the unencrypted video stream. As far as I know, BluRay has only been broken because of software players.

Re:Screw CSS

[metiscus]

People don't care about Africa but don't get between them and their Heroes season 1 dvd set.

Re:Screw CSS

[icebraining]

shielding service providers from responsibility of their users infringement was a pretty good idea.

Yes, but not being punished for sending fake DMCA takedown notices is bad.
http://www.techdirt.com/articles/20100323/1915138686.shtml

Re:Screw CSS

[AndersOSU]

Yes you are. If you circumvent a copy protection measure, you're violating the DMCA irrespective of whether or not you have a right to copy the protected work.

Much More To The Point

[jra]

The 5th Circuit ruled the other day that "circumvention" isn't a "crime" *if you're doing it in order to exercise rights you already have -- like watching a movie you bought, or sharing a clip of it with your students as Fair Use...

or doing a Downfall parody, presumably.

Even *more* to the point; this means that jailbreaking your iPhone isn't "a crime"... but it does *not* mean Apple's forced to support you now, when they would have cut you off before.

Re:Much More To The Point

[sconeu]

You sue for false advertising... "Own it Today!!!"

Re:Much More To The Point

[mea37]

Yeah, I remember reading about that ruling. I remember my first thought being "ok, if that's applied universally then what does the anti-circumvention clause actually mean?" So far I haven't been able to find a solid answer to that question, so I wouldn't be surprised to see that particular ruilng overturned sooner or later. I don't know how it is in the lower courts, but the Supreme Court isn't supposed to allow an interpretation that renders part of the statute meaningless.

Don't get me wrong, I'd like to see anti-circumvention struck down entirely; but barring a constitutional problem that would have to come from the legislature, not the courts.

Re:Much More To The Point

[dkleinsc]

or doing a Downfall parody, presumably.

Cue the Downfall parody in which Hitler finds out that Downfall parodies have been removed from Youtube.

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.

Re:There is a practical upshot

[AndersOSU]

Um, no.

While you have a right to jailbreak your phone, or break CSS on your movie (for certain purposes), it is not clear that you have the right to distribute tools to allow others to do the same. If you do this openly you might ultimately prevail in court, but you should definitely plan on being sued, because this issue has not been settled.

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?

well this sucks

[i_ate_god]

Now that it's legal, it's no where near as much fun...

The problem

[Anonymous Coward]

The problem with DMCA rulemaking is that it's made by bureaucrats, not elected representatives, and the small concessions that we got recently may be taken back at any time

- seanmichelson@yahoo.com