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Comment by akersten | Hacker News Reader

How is one supposed to exercise their right to Fair Use without "bypassing" technological measures via tools like these? I think there is solid legal DMCA ground for them to remain hosted in the US, without even needing to reach for the whole "freedom of speech" thing.

I won't even get into how I think GitHub is being overly courteous to media companies by extending takedown ability for alleged Section 1201 violations. I'm firmly convinced the only remedy the DMCA offers for that is via the courts, and that the takedown process explicitly requires the identification of infringing material, not circumvention tools.

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These laws are similar in what seems like a number of countries, and the reason why they're like this is quite simple: They want to have the cake (getting money from extra charges on stuff like DVD/BD burners, writeable media, hard drives etc. -- which you get charged to offset fair use and related rights) and also eat it (effectively denying you the rights you already paid for with those surcharges).

In a normal world, I can only do one of these. Either I take the money, and render services or goods OR I don't take the money, and then don't render the services. But in RIAA/DMCA/GEMA/...-Crazytown you get to charge people AND actively avoid delivering anything.

The Librarian of Congress (if I remember right) can declare three year exemptions to the anti-circumvention provisions. They have to be reviewed and renewed every time. Jailbreaking a smartphone is one example of an exemption that was granted in the past.

It really is a ridiculously one-sided law that gives all power to private media entities.

You don't. Which is why that part of DMCA at least should be repealed.

Fair use is about copyright. The DMCAs anti-circumvention section means you can't distribute software designed to circumvent DRM, even if that software isn't itself infringing. So I don't see how fair use could apply.

At a minimum, Google's counsel testified under penalty of perjury in this takedown letter that they took Fair Use into consideration, so there must be at least some application here. (And if there isn't, that sure is a strange sentence to have in the letter - almost as if they are misusing this takedown letter template after all!)

Fair Use is about using copyrighted content, which is widely shackled behind DRM. Any court can easily see that in order to exercise your right to use that content in a Fair Use sort of way, you must break the DRM. Therefore, the existence and availability of DRM-breaking tools is a necessary condition for Fair Use to be exercised at all in conjunction with the modern media landscape.

DMCA does not include fair use as an allowable reason to circumvent DRM. That is one of the reasons why DRM sometimes shows up in weird places because it effectively limits fair use rights (see also all the right to repair stuff that people have been talking sbout lately)

IANAL

>DMCA does not include fair use as an allowable reason to circumvent DRM. //

Could you cite the law you're referring to here please?

The UK CDPA as amended to follow the EU's Marrakech directive seems to say anything that prevents you from exercising your Fair Dealing rights to make content accessible for disabled people is void if it contradicts these rights. This seems necessarily to allow for circumvention of DRM (for people with disabilities and specific registered companies) but that also appears to mean production of circumvention means needs to be legal otherwise such accessibility will be impossible.

DMCA is the Digital Millennium Copyright Act, the latest amendment to USA copyright law. Text of the law is here: https://www.copyright.gov/legislation/dmca.pdf . GitHub is a division of a US company, Microsoft, so it is bound by US law.

Actually, it is more complicated than that. To exercise fair use defense (yes, it is a defense and not a right in US Copyright law), you must be able to use a process that is non-invasive (as stated in DMCA). So, if a DRM is preventing you to screenshot it, you are actually required to use a camera and exercise the analog hole. This is definitely disappointing, and I am not personally endorsing it, but the law as it stands does not lend credence. (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos (not just the test units in question). This was conspicuously absent from all discussions I've read.)

> (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos. This was conspicuously absent from all discussions I've read.)

It's absent because RIAA's intent is not stated. They did a blanket takedown, unprompted. As far as I can tell they never requested any particular modification. IIRC the only hint that it might be related is a mention that the rolling cipher algorithm that YouTube-dl "circumvents" was ruled to be DRM under German law.

However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.)

> However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.)

This is definitely untested in court but I won't be surprised if it is indeed part of marketing. The problem with the tests is that they do download the video, even if it is a small amount and since ytdl does not reject the video for downloading at all it is technically infrigment, probably without a valid fair use defense. If ytdl has actively rejected that (for example if the test units are specifically to prevent downloading those types of videos), they may have a stonger defense against RIAA claims.

Well... the tests do not actually download the videos.

Not in their entirety, but it still downloaded a second for each of those videos. Interpret that as you wish, but I will not be surprised if RIAA will use this.

Congress did not intend fair use to be an affirmative defense. It is clearly a right under US copyright law. The rights granted to copyright owners in section 106 are expressly “subject to” the fair use defense. The fair use section of the Act, section 107, provides expressly that fair use “is not an infringement of copyright", rather than an infringement with an affirmative defense. In Lenz v. Universal the courts say that fair use is "distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse.” and that “fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification….”

Fair use applies to copyrighted content, not circumvention tools.

This nonsense about "it's a defence not a right" discredits you.

It's a right because where it applies there is no tort. Like an allowed right of way over private property. Yes, if a you have someone abusing your rights by filling frivolous suits then "it's a defence", of course it is they're trying to assert a right they don't have.

Such needless couching of public rights in an authoritarian way is really offensive to the purposes of copyright, which is granted by the public - the demos - to private parties. It's not a natural right, and so yes, under Fair Use there is no right being infringed that a valid claim of tort can be made for; so one does have a right to do those things.

Thankfully in some countries the courts will just dismiss the case :

https://www.nytimes.com/2006/10/09/technology/09steal.html

Two years later, their case was dismissed :

https://www.generation-nt.com/drm-stopdrm-dadvsi-justice-loi... (fr)

They were considered as 'irresponsible' due to 'either psychological issues, force majeure or legitimate self-defense".

(Note that they even seem to have shared the DMCA infringing software on their website.)

Material doesn't infringe rappers^w people do, context is important as well. For example in UK Fair Dealing time-shifting of live broadcasts is allowed, but retention or sharing (eg watching a recording of a TV show with another person!) is not.

I think both the USA and UK DDAs allow copying as part of production of accessible content.

Honestly though, I'm not sure how this fits with "circumvention" the wording (UK) appears to allow it.

> How is one supposed to exercise their right to Fair Use without "bypassing" technological measures via tools like these?

Fair use is not a right. It's a defence. You're still infringing copyright, but this is an infringement that they cannot punish. Importantly, law makers see fair use as a restriction of the rights of the copyright holder, not as a right granted to users of that IP.

People have always known that DMCA interferes with these defences. See for example this from 2001: https://repository.uchastings.edu/cgi/viewcontent.cgi?articl...

> You're still infringing copyright

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work ... is not an infringement of copyright.

https://www.law.cornell.edu/uscode/text/17/107

The 9th Circuit in Lenz v. Universal disagrees.

> right to Fair Use

There is no such thing AFAIK.

For those downvoting, see: https://www.govinfo.gov/content/pkg/CHRG-109hhrg27003/html/C...

> It is important to be clear about what the fair use doctrine is not. Fair use is not a right. It is a defense. [...]

It's not hard to find more links explaining the same thing (e.g., see http://www.copyhype.com/2013/08/why-copyright-is-a-right-and...), but I'm happy to be proven wrong...

Fair use is a right, and if the law doesn't accurately reflect that, then the law needs to be changed.

When a "right" is spoken of in legal discussions (which this clearly is), it implies a "right by law". If you want to talk about another right, like your "moral right", you'd usually say exactly that.

But yes, even rights defined in the law can and do get redefined, newly introduced or removed.

It might not be an "affirmative" defense, but to my understanding that doesn't imply it's a right. A "right" as I understand it is something that is illegal for others to violate, and that government generally has a duty to protect. But there's nothing unlawful about creating something that's uncopyable, or about guarding what you have so closely that others are unable to copy it; in fact, I would've assumed being able to do so is itself your right. And should you create something that's uncopyable, nobody will be able to copy it, even if it would be fair use for them to do so. They might be upset about this, but their rights definitely aren't being violated by your creation or protection of that thing—and the government can't force you to make your stuff copyable. (Or maybe it can with additional legislation, but I'm pretty sure we don't have such legislation.) That means "fair use" isn't anyone's right... it's just a valid defense (whether "affirmative" or otherwise).

By this logic free speech isn't a right because the government is under no obligation to provide you with a platform to exercise it.

Offering you a platform is not the same thing as ensuring that it's even physically possible. The argument wasn't about the government hosting copyrightable content for you or delivering it to you; it was about ensuring it is even possible for you to copy content.

Preventing something from being copyable is only possible by not distributing it. If you can see it you can copy it.

The copyright holder could prevent you from copying it by never distributing it, but that doesn't mean you don't have a right to fair use, it only means you don't have the ability to exercise that right. Much the same as you can't exercise freedom of the press if you can't afford a printing press (or any modern equivalent).

It might be physically impossible for you to have an abortion, e.g. because you're infertile, but that doesn't mean you don't have a right to one under existing precedent.

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