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The Bizarre Process Used For Approving Exemptions To the DMCA

Posted by Soulskill on from the assume-a-spherical-librarian dept.

harrymcc writes: The Digital Millennium Copyright Act imposes severe penalties on those who overcome copy-protection technologies. It allows for exemptions for a variety of purposes — but in a weird proviso, those exemptions must be re-approved by the Librarian of Congress every three years. Over at Fast Company, Glenn Fleishman takes a look at this broken system and why it's so bad for our rights as consumers. "The Librarian has opted to require one or more 'champions' or proponents of a carefully defined category, like "Audiovisual works – educational uses – colleges and universities," to file a brief. His office also opens the floor to rebuttals from opponents. Further, the Librarian sunsets every exemption every three years—something not required by the law, and which requires champions to arise again to launch a new defense. The office also doesn't propose its own examples of circumvention that should be permitted, even though the law permits it to do so."

40 of 69 comments (clear)

  1. Sunset provisions are good. by Ichijo · · Score: 5, Insightful

    If only the DMCA itself had one.

    --
    Any sufficiently unpopular but cohesive argument is indistinguishable from trolling.
    1. Re:Sunset provisions are good. by Gennerik · · Score: 2

      How true. The scope that it covers with worded ambiguity is ridiculous, especially when dealing with companies that refuse to give consumers power to enjoy what they have spent money on, even when faced with companies abandoning some products entirely (except as a way to create lawsuits).

    2. Re:Sunset provisions are good. by Shadow+of+Eternity · · Score: 1

      Sunset provisions on the restrictions of rights are good, we should always err towards the side of greater liberty*. If an exception to a law like the DMCA is approved which increases citizens' liberty (jailbreaking phones, timeshifting media, etc) then that exception shouldn't have a sunset date. A restriction of citizens' rights on the other hand such as the DMCA itself should.

      *Shouting fire in a theater, public health risks like measles or krokodil, can be reasonably argued as net reductions in liberty due to their net effect.

      --
      A bullet may have your name on it but splash damage is addressed "To whom it may concern."
    3. Re:Sunset provisions are good. by harperska · · Score: 1

      To expand on your footnote, a good way to formalize your point is that your rights/liberty stops where another's starts. Shouting fire in a theatre is not covered under your right to free speech, as it impinges on the rights of others' safety and security. Therefore the maximum state of liberty is where you are permitted as many rights as possible without simultaneously reducing the rights of others. This is the ideal that all laws should tend towards (and this one obviously does not).

    4. Re:Sunset provisions are good. by davester666 · · Score: 4, Funny

      It's almost as if the industry wrote the law and is responsible for directing the government as to how to enforce it.

      --
      Sleep your way to a whiter smile...date a dentist!
    5. Re:Sunset provisions are good. by Anonymous Coward · · Score: 1

      And that's what "GPL is more free" is more free FOR.

      BSD is the freedom to yell "Fire!" in a Theatre. GPL is the right to be free of lies.

    6. Re:Sunset provisions are good. by JesseMcDonald · · Score: 1

      Shouting fire in a theatre is not covered under your right to free speech, as it impinges on the rights of others' safety and security.

      It does no such thing. Now, panicking and trampling others in your haste to escape the "fire" does infringe others' rights, but that isn't directly caused by shouting "fire" and would not be justified even if the fire were real. The responsibility for that harm lies squarely with those who panic.

      If someone fraudulently claims that there's a fire, and you take justifiable action based on a reasonable belief that they're telling you the truth, then they would be responsible for any harm that results from their fraud. That harm resulted from their choice, not yours. That isn't the case here; panicking and trampling others are not justifiable responses to a fire.

      I find it hard to believe that so many people are willing to defend this bizarre ruling, which besides being unjust in its own right was also clearly politically motivated with the specific purpose of circumventing the First Amendment and permitting the suppression of political speech opposed to the draft (Schenck v. United States).

      --
      "The state is that great fiction by which everyone tries to live at the expense of everyone else." - Bastiat
  2. CopyOnce Protection should be removed on Video by ZippyTheChicken · · Score: 3, Interesting

    For a few years now i have been using Microsoft Media Center to DVR video that I capture from my Cable TV Company There are now two really pending problems that will effect me and everyone else. As of Windows 10 Microsoft will no longer distribute Media Center.. I have already applied for the free upgrade to Win10 but I don't think I can upgrade past Win7 now because of this. That means I will be forced to run a deprecated OS if I want to continue to watch the content I recorded for my personal use. The CopyOnce tag that is now in most of my Cable TV channel signals will now limit me from recording shows I can't watch live or want to save to rewatch. Between Windows 10 and Comcast locking up even stations like SyFy, Comedy Central, Bravo, USA, AMC, Spike and many others with CopyOnce protection there is no way to use a CableCard Ceton Tuner or SiliconDust and another device like a Android or Roku to get TV signal that is CopyOnce protected to your television and you can completely forget Recording it for later. So basically CopyOnce and the problems with MediaCenter and Other Software means everyone who wants to take advantage of the FCC Regulation that allows / Forces Cable Companies to allow customers to buy a CableCard tuner and not rent one... that is over... or you can use a deprecated OS to connect your Xbox or something to your tv... This means I am locked into Comcast's DVRs which are extremely expensive for me to afford .. I do not own any because of that. and I will have lost a couple years worth of shows I have recorded .. many that are no longer broadcast on TV even in Reruns... Additionally The Simpsons has just announced that they will no longer distribute on DVD Microsoft says that Windows 10 Will NOT have DVD support This means you will have to rely on a thirdparty product to watch your DVDs if you can find one that works with copyright protection. I don't own any myself. This is very expensive .. we are talking thousands of dollars and more for the average home. The Simpsons will now only distribute by streaming Comcast is introducing some hardcore data caps that will charge you for every gig of data over 10 gigs per month... it has already been implemented in Kentucky and people with fast connections who stream can end up paying a hundred or more a month just to watch online content from ANY SOURCE. CopyOnce should not be allowed on normal Cable TV Stations. It should be allowed on Premium Pay Stations like HBO or the Porn Channels.. neither of which i subscribe to because of cost.

    1. Re:CopyOnce Protection should be removed on Video by stooo · · Score: 1

      >> Microsoft will no longer distribute ... That means I will be forced to run a deprecated OS

      Use Linux

      --
      aaaaaaa
    2. Re:CopyOnce Protection should be removed on Video by dcollins117 · · Score: 2

      Holy crap, I'm surprised anyone put up with as much as you did for as long as you did. That's really above and beyond what anyone should have to deal with. Have you considered looking into an open source OS like Linux Mint or Ubuntu? You can install it side by side with Windows or run it in a virtual machine without negatively affecting your existing Windows installation. That will give you the control over your media collection that you really need. You have more than paid dearly for those files, you should be able to use them the way you want.

  3. Usual assymetry by l2718 · · Score: 1

    The Library of Congress being about preserving the cultural heritage of the US, it was an odd choice in the first place to give the Librarian of Congress a national regulatory function.

    The real problem is the asymmetry: the costs of over-regulation are born by the public as a whole, but in very small increments. The notional costs of under-regulation will be born by obvious "aggrieved parties" with deep lobbying muscle. There's also the usual problem that assumes that the "stakeholders" in any copyright debate are just the people who stand to gain from extending copyright protection, but not the general public who enjoys the fruit of the copyright regime.

  4. good principle! by NostalgiaForInfinity · · Score: 4, Interesting

    those exemptions must be re-approved by the Librarian of Congress every three years

    We should apply the same idea to Congress and the laws it passes: every law should have to be re-approved by every new Congress individually.

    1. Re: good principle! by Anonymous Coward · · Score: 1

      They'd just bundle it together like they already do.

    2. Re:good principle! by Bite+The+Pillow · · Score: 1

      I have long held the idea that any law or amendment have some sort of measurable goal, and if that measurement shows no progress in the intended direction in the laws' number of years, that it be automatically rescinded without an extension passed through the same process.

      By your logic, Congress would spend 99.9% or more of its time on renewing things that make sense.

      I recommend that Congress set a measurable goal, which requires no additional time from Congress, other than that they be aware of the consequences, and unintended consequences, of their laws.

    3. Re:good principle! by NostalgiaForInfinity · · Score: 1

      By your logic, Congress would spend 99.9% or more of its time on renewing things that make sense.

      Correct. It would limit the total number of laws to something normal humans can deal with and force Congress to prioritize.

    4. Re:good principle! by Kamots · · Score: 1

      Naw, what would instead happen is that you'd get something like the debt-ceiling. You'd get a "Bill to re-pass every pre-existing bill" and it'd be waved through until you got obstructionists in office and they let all laws expire for a week or two with partisan bickering/amendments.

      Can't see this helping.

    5. Re:good principle! by dbIII · · Score: 1

      I suggest you read "Utopia" by Thomas More (it's online in English and not very long). One of the bits to show it was deliberate satire was that the laws were so simple that anybody could understand them yet completely fair and without loopholes. Thomas More was a lawyer by trade.
      So seen as a ridiculous joke in 1516 - is life so much more simple now that it's no longer ridiculous?
      While some simplification is a good idea I don't think we can dumb it down enough to get rid of the lawyers without risking some grave injustices (see King John and why we ended up with Magna Carta to rein him in for example).

    6. Re:good principle! by NostalgiaForInfinity · · Score: 1

      That's why I said: "every law should have to be re-approved by every new Congress individually". (And, yes, you'd need limits on the size of laws.)

    7. Re:good principle! by NostalgiaForInfinity · · Score: 1

      You really need to read more carefully. I didn't argue for the abolition of lawyers or laws. I made a statement about federal law and Congress. There are plenty of complex arrangements people need in their lives, but they don't need to be imposed at a centralized, federal level by Congress.

      As for Thomas More, the fact that he was historically important and that his ideas were influential to some degree doesn't make them right. More's Utopia effectively describes a progressive ideal; to what degree it was satire is debatable (communists certainly didn't think so). And for a lawyer to advocate a big and complex body of law would hardly be surprising.

    8. Re:good principle! by Livius · · Score: 1

      And every piece of legislation gets rewritten into a single bill.

      They don't even bother reading them now - it would get that much worse.

    9. Re:good principle! by dbIII · · Score: 1
      Ah! A State's Right's sort of person who wants to go back to the thirteen colonies instead of the nasty Union where people in other States get to have a say in your affairs - I should have known.

      to what degree it was satire is debatable

      With respect, the strings between husbands and wives so that they can find their way back when drunk is a pretty enormous fucking clue!

      I tried being polite but you are not only a fucking idiot but one that wants to throw away what George Washington gave you.

    10. Re:good principle! by N1AK · · Score: 1

      I tried being polite but you are not only a fucking idiot but one that wants to throw away what George Washington gave you.

      I tend to lose a lot of sympathy for people when, like in this case, someone responds to a reference they don't have personal experience of, by doing a two minute Google/Wikipedia search and then respond like they have actually studied it.

    11. Re:good principle! by Zontar_Thing_From_Ve · · Score: 1

      We should apply the same idea to Congress and the laws it passes: every law should have to be re-approved by every new Congress individually.

      You seriously want this completely ineffectual Congress to have to do that? Not to mention the time this would take, but with the realities of today's Congress and the "my way or the highway" Tea Party supporters in it, no law would ever again pass if it had to do that. I guess if you're in favor of anarchy this is one way to do it. Keep in mind that the Patriot Act renewal was defeated by exactly one man, a junior senator in the majority party who was powerless to stop him despite many influential and senior members of that party being opposed to him. No law would ever be renewed again under this plan.

    12. Re:good principle! by NostalgiaForInfinity · · Score: 1

      You really have trouble reading and thinking:

      And, yes, you'd need limits on the size of laws.

    13. Re:good principle! by DarkOx · · Score: 1

      I think its an interesting idea but as you say congress would be almost entirely bogged down in re-upping existing /good/ laws. Even if a vote to 're-approve the federal statute against murder' takes only 60 seconds to execute you still won't get much done in a congressional session.

      What I think might be more interesting is to require every legislative act to have preamble like the Constitution does. It should be required to be written in plain language at a 4th grade reading level, stating the acts broad objectives and intent. After say a period of 5 years anyone who is subject to the law should be permitted to challenge it in federal court for 'performance'. If the court finds the Act:

      does not materially satisfy the objectives in its preamble
      OR
      has material unintended consequences (positive or negative the court should not be permitted to make a value judgement)
      OR
      has been materially used be the Executive for purposes not covered by the preamble

      the law should be vacated.

      --
      Repeal the 17th Amendment TODAY! Also Please Read http://www.gnu.org/philosophy/right-to-read.html
    14. Re:good principle! by david_thornley · · Score: 1

      Limitations on the size of laws? They'll just get more ambiguous, and the law will be even more determined by judicial decisions and precedents, things that are a lot harder to find than black-letter law. Moreover, Federal law will vary even more from Circuit to Circuit.

      After all, a lot of verbiage is for the sake of precision. Make that expensive and precision will suffer.

      --
      "When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
  5. Turn over, Benjamin Franklin by Anonymous Coward · · Score: 4, Insightful

    ... which requires champions to arise again to launch a new defense ...

    The US library of Congress ensures that copyright holders have more rights than consumers. I think Benjamin Franklin would be horrified by this unfettered exercise in fascism.

    1. Re:Turn over, Benjamin Franklin by Shadow+of+Eternity · · Score: 1

      He'd probably also be horrified that poor whites, women, and blacks could vote. There's a reasonable argument to be made about the intentions of the founders, but keep things in check.

      --
      A bullet may have your name on it but splash damage is addressed "To whom it may concern."
    2. Re:Turn over, Benjamin Franklin by Livius · · Score: 1

      The correct word is feudalism.

    3. Re:Turn over, Benjamin Franklin by N1AK · · Score: 1

      There's one (appeal to authority), and even that is dubious as he doesn't state it as fact that Franklin would react in the way he supposes; it's also equally present in the post he was responding to. Your own post definitely includes one. However it wouldn't take a student of philosophy to know any of this.

    4. Re:Turn over, Benjamin Franklin by jedidiah · · Score: 1

      Not just philosophy. Try history. He was a radical Quaker and didn't even bother to patent his own inventions when he had the chance. It just didn't sit well with his ideals.

      Not all of the founding fathers were plantation owners content with the status quo either before or after the revolution.

      --
      A Pirate and a Puritan look the same on a balance sheet.
  6. Re:The results are just as bad by russotto · · Score: 2

    There's no exemption for products. If they don't renew the exemption, you have to stop doing the activity. The exemption process never was meant to work; it was just to make the law look slightly less Draconian (and various groups are pissed off that it somehow managed to produce as many exemptions as it has)

  7. Why doesn't 1201-a-1-A nullify itself? by Anonymous Coward · · Score: 2, Funny

    I'm no lawyer but section 1201-a-1-A readS:
    "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. "

    Personally I'm shocked nobody has ever tried to defend a DMCA decryption request on the grounds that the control does not 'effectively' control access to the work, because it is easily broken. Something can't 'effectively control access' if it is not actually successful in doing so. This provision reads like 'It's illegal to bypass something that nobody has been able to bypass', at which point the act of successfully bypassing it would make the bypassing itself legal...... ... ok, maybe it's a good thing legislatures don't think recursively, but still...

    1. Re:Why doesn't 1201-a-1-A nullify itself? by bws111 · · Score: 1

      Read a little further. Section 1201-a-3-B states:

      "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."

      Once it is 'easily broken' the violation has already taken place, since effective is defined as in normal operation.

    2. Re:Why doesn't 1201-a-1-A nullify itself? by david_thornley · · Score: 1

      Locks are similar. A door for a business normally open to the public is not open if locked, and it doesn't matter how good the lock is. Of course, you couldn't legally benefit from any wisdom in this post (measured by letters, not by ideas; concepts may settle in shipping) if I'd used ROT13.

      --
      "When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
  8. Simple solution. by Ecuador · · Score: 2

    Just get the right librarian for the job.
    Ook.

    --
    Violence is the last refuge of the incompetent. Polar Scope Align for iOS
    1. Re:Simple solution. by BlueStrat · · Score: 1

      Just get the right librarian for the job.
      Ook.

      What, you don't like our current one who unofficially goes by the moniker '343 Guilty Spark'?

      Strat

      --
      Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
  9. Yikes by Stoutlimb · · Score: 1

    American corruption at it's finest. A make work project if I ever saw one. The USA will continue to decline until everyone is either a lawyer or contributing to a lawyer's lifestyle.

  10. Because 1201(a)(3)(b) *DEFINES* "effective" by Anonymous Coward · · Score: 1

    I believe that issue came up way back in the (1999? 2000? 2001?) MPAA-vs-2600 trial. It was waved aside immediately. "Effective" doesn't mean what you think it means. See 1201(a)(3)(b).

    IMHO the part that hasn't been discussed much, is the role of the "without the authority of the copyright owner" just one line higher up, in 1201(a)(2)(a). If you buy a DVD, do you have the authority of the copyright owner to bypass the DRM?

    If you're authorized to bypass, descramble, etc then you are not "circumventing" the access controls and therefore it's permitted to rip it, or to put it in your Sony DVD player, put it in your libcss-based player, etc.

    If you're not authorized to bypass, descramble, etc then you are "circumventing" the access controls and therefore it's not permitted to rip it, but it's also not permitted for you to put it in your Sony DVD player, and for that matter, it was illegal for Sony to manufacture, market, or sell that DVD player, and it was illegal for CostCo to traffic in that DVD player.

    That last part kind of sounds absurd, doesn't it? It's hard to believe, and I don't think the idea has defenders.

    The DVD sleeve doesn't tell you whether or not you have the authority of the copyright owner to watch the movie that you bought. Nothing tells you. All you know is that Sony isn't being punished for selling DVD players, therefore the implication is that the copyright holder has authorized their customers to bypass the DRM.

    No? The copyright holder hasn't authorized their customers to break the DRM? Ok, then how can DVD players (or Blu-Ray players, or Zunes or iPads, etc) be legal to use? And if they're not legal to use, then 1201(b) is also going to make them illegal to make/market/sell.

  11. ohh man, this might be in a wrong thread by Kekke · · Score: 1

    https://www.youtube.com/watch?...

    Hate to link youtubelos here, /ignore , if You so wish

    t;k