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Comment by ryanswapp | Hacker News Reader

I studied section 1201 thoroughly during law school and I think this post doesn't give a fair characterization of it. The reason this statute exists is because companies were unable to devise protection for copyrighted works that hackers were not able to immediately circumvent. As a result, the government stepped in and created 1201 to make it illegal for someone to circumvent some form of access control that a company used to protect their copyrighted works. The purpose of the statute isn't to destroy <insert Internet activist claimed right> but is to make it much less expensive for a company to protect its products. I don't see anything wrong with that.

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But if you circumvent copy protection for the purpose of sharing copyrighted works publicly then you were already doing something illegal before section 1201. All section 1201 does is also make it illegal to circumvent copy protection even if you don't do anything else illegal under copyright law, like keep copies of movies you bought privately in a digital collection that you can back up, or using software that you payed for when you aren't connected to the internet. If we think circumventing copy protection for the purposes of copyright infringement is extra bad, why not just add additional penalties to additional copyright infringement?

"protect" is a biased term. One person's "protect" is another's "control". You mentioned "access control"; however, copyright has nothing to do with access control. Copyright is not an unlimited right to control all possible uses of a work; DMCA 1201 turns it into one, by enshrining whatever access control restrictions a piece of software implements into law.

Ignoring fair use for a moment (which DMCA 1201 also breaks, so that's another problem), copyright restricts copying. DMCA 1201 produces a restriction on usage, which copyright does not control.

DMCA 1201 doesn't actually prevent you from copying a DVD, for instance. DMCA 1201 prevents you from reading and playing a DVD using anything other than software approved by the author of the DVD.

The purpose of legislation isn't relevant, only the effect of the legislation. And the effects are the problem; potentially any debugger could be considered a "circumvention tool". Just like scope creep has caused laboratory glassware to be considered illegal "drug paraphernalia" in places.

1201 also has the effect of banning circumvention that does not infringe copyright. Which is supposedly addressed by the weird adhoc Library of Congress exemption system, but only in a very limited set of cases.

Whether the purpose of legislation matters very much depends on a judge's beliefs regarding statutory interpretation. Enforcement of a statute is often all about the purpose of it. That said, I see your point and its a valid one. I'm just not sure I believe getting rid of 1201 will do less harm than good. I guess we'll see how the lawsuit turns out!

You're missing things like (e.g.):

- Tractors that have technical measures to prevent 3rd party repairs or replacement parts. Circumventing those measures is a DMCA violation, even if all you're trying to do is repair a tractor that you own without paying an arm and a leg to the manufacturer for a repair person.

- Printer makers that use technical measures to prevent their printers from using 3rd party inkjet cartridges. It's not my fault that they want to use the "give away the razor, sell the blades" business model.

- Basically any company that wants everything relating to their product to go through them, and to prevent 3rd party companies from creating replacement parts or performing repairs.

The government shouldn't be making laws just to make certain business models viable (that are otherwise not viable). (e.g.) If you can't sell cheap printers without gouging people by selling expensive ink, then charge more for your printers. If printers are too expensive for everyone to have one at home, then so be it. They will do their printing at Kinko's (or the local equivalent).

This works in other industries. Car manufacturers have had a 3rd party parts market for a long time (though they are definitely suckling at the teat of the DMCA and trying to make newer cars as locked down as possible).

Do you really think that the US government should be making laws to shut down the 3rd party inkjet cartridge industry in order to protect HP's consumer printer business? Should the US government pass laws to make it illegal for a farmer to install a non-John Deere part on his John Deere tractor? Is this the kind of thing that the government needs to be doing?

The DRM is not in products that the company own. They sold those products, knowingly, rather than renting them out as a service. Companies should have no right to "protect" lawfully-purchased products against usage by the person who legally bought it.

If they want to sell something and still remain ownership rights, then do what every company in history did before software DRM: rent it out as a service. A car bought, and a car rented, has natural right differences which is being erased by DRM.

>The purpose of the statute isn't to destroy <insert Internet activist claimed right>

What difference does the intended purpose make if it does indeed destroy <insert Internet activist claimed right>?

If that was indeed the purpose of 1201, the the law as written has unintended consequences.

But my feeling is that they knew damn well that they were going to sweep up non commercial tinkerers as well.

These days the line between commercial and non commercial is blurred. With the internet a hacker can publish some circumvention method and software with the same reach as a large company.[1]

[1] I personally see no problem with that. BTW. The law is being used here to prop up outdated, often monopolistic, business models. That's the company's problem, and shouldn't be externalized onto all of society.

This reminds me of SLAPP suits.[1]

Of course not every violation of 1201 will be prosecuted, but the laws are there to intimidate people if their tinkering becomes commerciall bothersome.

[1] https://en.m.wikipedia.org/wiki/Strategic_lawsuit_against_pu...

> As a result, the government stepped in and created 1201 to make it illegal for someone to <A> to <B>.

Doing <B> was already illegal. Therefore, doing <A> in order to <B> was also already illegal.

People are upset that <A> is now illegal, for all purposes, not just doing <B>.

> The purpose of the statute isn't to <X> but is to <Y>. I don't see anything wrong with that.

What's wrong with that is that it also does <X> (even if that isn't the "purpose").

While your points are correct, I think the use of variables actually makes it harder to follow

I'm pretty sure everyone's aware of the stated purpose of the section. It's not like there were a bunch of execs and lobbyists sitting around going "there's too much creativity in the world."

But the intentions of the legislation don't change its consequences.

Oh they very much do. Legislative intent is a major factor that many judges consider when enforcing legislation. Intent often has a very big impact on consequence.

IANAL, but this could cut both ways, couldn't it? If the judge decides the effect is different than the intent, she could either say "the intent is valid so let's ignore the effects" (what you seem to advocate here) or "the effects are not what was intended so until the legislative branch makes a change we'll use the following interpretation in order to make the effects more like the intent". There may be a standard way of deciding between these two alternatives, but I don't know it.

I do not think the author doesn't know that section 1201 was designed to help companies create access control. The author of the blog post is talking about not just the purpose of the law, but also the effect, which he or she believes infringes on the First Amendment.

I'm not a lawyer, but I think that laws with a constitutionally valid purpose are sometimes ruled unconstitutional by the courts when they have unconstitutional effects.

I can't comment on whether I think that will be the case here.

The purpose of me setting this bush alight is not to start a forest fire; it's to cook some marshmallows. I don't see anything wrong with that [even if it does actually start a forest fire].

If a law has unintended consequences of the magnitude that exceeds the supposed beneficial intent of the law, it's a bad law.

If there's no way to write a law without such unintended consequences, it shouldn't exist.

In this case, there's also the additional orthogonal argument that the law violates the First Amendment by prohibiting speech. Even if the law didn't have unintended consequences, this alone is sufficient to justify getting rid of it - if we allow unconstitutional laws because they serve a good purpose, all constitutional protections go out of the window.

Well, sure, that is the intent. Where people disagree is whether it's reasonable to criminalize breaking copy protection, rather than the act of illegally copying and distributing copyrighted content.

The first amendment of the US Constitution states that Congress (later interpreted as the entire federal government) cannot restrict free speech. Congress passed the DMCA, part of which said that you can't tell anyone about how to bypass DRM. Therefore, Congress restricted free speech, which is contrary to established law.

Do you see the problem?

Of course, the question is does this invalidate the entire DMCA or only that specific part?

Thanks for giving some context, and sorry to see you blanked out for providing a viable and nuanced rebuttal to what the EFF is doing. They are engaging in FUD on this one. It's got questionable merit. Thankfully, the legal system will sort this out and I presume in a fashion I find agreeable, because the EFF's position is extreme and untenable.

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