Comment by akersten | Hacker News Reader

Comment by akersten | Hacker News Reader

> I have taken fair use into consideration.

This is always a fucking lie, and I wish we (as a community) would band together to make it more painful for giant companies to just spam DMCA takedowns as part of their DRM strategy.

Ignoring the entire issue with the fact that there probably wasn't any copyrighted material in the repo to begin with and that code is speech, and speech is protected in the US - in other words, taking the most charitable (for corporations) interpretation of the DMCA and assuming that neither of those holds true, a fair use provision still should hold!

Circumvention for purposes of transposing your media to a different platform (time-shifting, archival) are already explicitly allowed per USC and rulings (if I'm not mistaken).

I don't have the energy to type more. All in all, the DMCA needs some fangs pulled. Or fangs added, in the "perjury" category for entities that send out bad faith takedowns for code that they don't like. Has anyone ever been held legally responsible for a bad-faith DMCA takedown request? Don't think I've seen it.

So, the thing about circumvention exceptions is that...

1. There is no general exception for format shifting. If there was, DMCA 1201 would have zero legal weight.

2. Even if there was, it would not materially impact the legal status of this DMCA 512 takedown request

This is because DMCA 1201 circumvention exceptions only apply to half of the law. Section 1201 renders two different acts illegal:

1. You can't circumvent DRM, unless for specific purposes.

2. You can't tell anyone how to circumvent DRM, regardless of purpose. This is the sort of violation being alleged here.

Depending on how you look at it, either Congress assumed a black market would exist for DRM circumvention technology anyway; or they assumed people who need lawful circumvention would in-house everything and destroy it when they no longer needed it. That's the sort of question a court might have to interpret if someone was a bit more careful than, say, publishing the DRM unlock straight onto GitHub. But that's not this case. In this case, the law does not facilitate any fair use argumentation whatsoever.

It's not a lie, the DMCA 1201 exception process is just hilariously toothless.

You're not allowed to circumvent for format shifting, but you are allowed to circumvent to access a work you have rights to. So these takedowns on GitHub should not be happening.

There's no exception to the tools prohibition based on purpose. One of many harsh features of §1201.

Nope, the law contradicts itself. In such a conflict it is typical to favor the consumer.

Can you point out the contradicting bits?

The law allows people to circumvent copy protection to access works they are entitled to access. There is also a provision against sharing copy protection breaking methods.

I never interpreted them as clashing, merely that I can't knowingly share copy breaking mechanisms with people who are unauthorized to use a work. If they do clash then you have to side with the consumer.

> The law allows people to circumvent copy protection to access works they are entitled to access.

Claiming that such an allowance exists is not the same as actually identifying the statute or ruling that creates the allowance. What is your textual basis for claiming that there's a general permission for circumvention?

> If they do clash then you have to side with the consumer.

This sounds like you're referring to a concept that exists in contract law, but has no applicability to a question of how to handle a conflict between two provisions in law. In such a case, the courts will usually uphold whichever provision actually exists in the text of the law.

Have you actually read the law you're discussing? It was in the first amendment to the DMCA, because they realized they can't prevent people from accessing things they paid for.

Full text of 1201 here: https://www.law.cornell.edu/uscode/text/17/1201. Note the many exemptions. You could just call it encryption research. You also need to look at the list of exemptions granted by the library of congress, which is quite extensive: https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A....

I can't actually find the thing I am looking for. AFAIR the Cornell law site does not have the updated version that I need to reference, but you can see by the exemptions granted they are just codifying your rights to continue to use a work, even if it is not necessarily obsolete, if the copy protection has gotten in your way.

To actually change this rightsholders would have to lease works instead of selling them, but they still use the word "sell" when interacting with consumers.

I recently spoke with someone who helped write some of those exceptions and he said that they were a result of lobbying, including his lobbying, not that legislators added them for fear of having the statute thrown out by the courts.

> I can't actually find the thing I am looking for. AFAIR the Cornell law site does not have the updated version that I need to reference, but you can see by the exemptions granted they are just codifying your rights to continue to use a work, even if it is not necessarily obsolete, if the copy protection has gotten in your way.

The exemptions are issued by the Library of Congress and don't become part of the statutory text.

It's true that user advocates have argued that fair use is required by the first amendment and cited some text in Eldred for that proposition, and it's true that proponents of the DMCA have argued that fair use is accommodated by the exceptions and exemptions. Still, proponents of the DMCA have never admitted that the DMCA would be unconstitutional without those exceptions, nor that the DMCA is unconstitutional if those exceptions don't work or don't protect users' rights adequately.

You are allowed to circumvent to access a work. No one is allowed to publish a method to do so (well, I believe the original copyright owner might be?).

So, most likely this GitHub takedown is perfectly legal.

>2. You can't tell anyone how to circumvent DRM, regardless of purpose. This is the sort of violation being alleged here.

I'm curious: why would this be the case? This is a restriction of speech that doesn't contain copyrighted content enacted by a copyright law. This seems like charging someone, by using an anti-burglary law, because they taught someone else how to pick a lock .

>I'm curious: why would this be the case?

Because the DMCA, like most US law, is written by corporations without regard for the common folk.

The RIAA and MPAA literally don't give a shit what happens so long as they get to keep gouging the public with their antiquated business models.

They can't compete so they resort to litigation to protect their bottom line(s).

To be fair, congress mostly doesn’t give a shit what happens either.

I’m genuinely curious if this aspect of the law would (or has) stand up to scrutiny, given that congress regularly writes unconstitutional laws, and the Supreme Court really really really hates prior restraint.

Yes, that is exactly what this is like, and if this was 1998 you could have joined us all in a rousing debate about the chilling implications of all this.

Just to give you an idea of how dumb this law is, try this for a hypothetical.

Alice uses DRM to protect her copyrighted work.

Bob uses the exact same DRM to stop you from copying public domain works, for example.

You publish some code to break Bob's DRM. Is that illegal?

The law shouldn't enable Bob to do that. But if you can have tools to break Bob's DRM, the tools will break Alice's DRM because they're the same, and then the law is pointless and might as well be repealed.

But if it's not legal to break Bob's DRM, then obviously the law is ridiculous and needs to be repealed, if it isn't already unconstitutional as a result.

We should not still have this.

I don't think that a law preventing you from breaking Bob's DRM just because it protects public domain is ridiculous. Public domain just means that nobody owns the rights, it is not an obligation for anyone who owns a copy to make it available to everyone.

For example, I can own a copy of Moby Dick and do everything in my power to make sure that you don't get my copy, and if you break into my house to read it, I can sue you for that, and I don't think "but I wanted to read a public domain book" is going to be well received. What I can't do is prevent you from getting your own copy of Moby Dick from someone more willing to share it, and then share it yourself.

> I don't think that a law preventing you from breaking Bob's DRM just because it protects public domain is ridiculous. Public domain just means that nobody owns the rights, it is not an obligation for anyone who owns a copy to make it available to everyone.

That's not what's happening. Bob is making it available to everyone, and then trying to reassert a copyright on something that isn't.

Suppose Bob was the copyright owner, last year, before the work entered the public domain. He never distributed any copy without DRM, so no DRM-free copies exist. This is fine? Section 1201 of the DMCA was created to eliminate the public domain?

You're also missing the point. Stop trying to argue about the specifics of the thing Bob is doing and just choose anything you feel would be illegitimate. Preventing the use of third party toner cartridges, preventing farmers from repairing their tractors, take your pick. That's obviously not what the law was intended to do and it shouldn't be doing that.

But when Bob is using the same DRM as Alice, either you can publish tools to break it or you can't. If you can, the law is pointless. If you can't, the law is wrong.

> Suppose Bob was the copyright owner, last year, before the work entered the public domain. He never distributed any copy without DRM, so no DRM-free copies exist. This is fine? Section 1201 of the DMCA was created to eliminate the public domain?

No law compels Bob to provide people with new copies once the work enters public domain (and remember, Bob's publication might contain separate works with their own copyrights like cover art or an introduction). Once it does, Bob can't stop you from distributing a version you created by buying a print copy and scanning it or taking screenshots of his DRM version and running them through OCR (as long as you don't include the cover art or introduction). If Bob's DRM was unique to this one book, there might be an argument that breaking it was the same (as long as there's no cover art and no introduction). Since Bob's DRM is likely used for other works not in the public domain, it's going to be hard to distinguish your breaking it for this PD work from the fact that you've broken it for lots of other in-copyright things.

> No law compels Bob to provide people with new copies once the work enters public domain

The problem is not what the law requires Bob to do. The problem is what the law prohibits you from doing.

> Once it does, Bob can't stop you from distributing a version you created by buying a print copy and scanning it or taking screenshots of his DRM version and running them through OCR

"The law against breaking DRM isn't wrong but only because it is actually useless."

> Since Bob's DRM is likely used for other works not in the public domain, it's going to be hard to distinguish your breaking it for this PD work from the fact that you've broken it for lots of other in-copyright things.

That's the problem. The tools don't discriminate, so banning them goes too far and prohibits more than it is reasonable to.

> "The law against breaking DRM isn't wrong but only because it is actually useless."

No. Your right to distribute a copy doesn't imply your right to get one in the easiest way that you can imagine.

> That's the problem. The tools don't discriminate, so banning them goes too far and prohibits more than it is reasonable to.

Reasonable to whom? Someone else might say it's reasonable to protect the DRM on this PD book because it protects lots of in-copyright books without harming you because there are other ways of getting a copy of this one work without breaking the DRM on all of them. You might disagree but that's what courts are for.

The bigger problem with DRM exist because of concentration in the publishing industry. Licensing books sucks and that's what harms the public domain (and libraries), but there's not enough competition for many publishers to survive by offering to sell you the ebook rather than licensing it to you. Copyright isn't the enemy. It's the monopolies that abuse it.

Public domain isn't copyleft.

> This seems like charging someone, by using an anti-burglary law, because they taught someone else how to pick a lock .

Hungary has such a law.

Unfortunately the DMCA also covers technology that works around DRM, not just copyright violation. Anyone wanting to share any anti-DRM software is advised to use a non-US site; GitHub probably doesn't have a choice about things like this once someone reports it.

The notice didn't claim copyright violation. It claimed (accurately) that this code worked around their DRM.

Except it started with:

> Yes, I am the copyright holder.

Read the rest. In context they are saying that the code allows people to circumvent the DRM and access their copyrighted works. So it's an anti-DRM claim not an ordinary copyright claim.

I think there are two separate issues here. Is the code illegal? Yes* Is the takedown notice correct and truthful? No*

*Ianal etc.

By "non-US" you probably mean "non-WTO". WIPO/TRIPS was specifically used to policy-launder DMCA 1201 into US law despite the objections of the tech community in the US. EU law has very similar provisions and I'm told "copypaste 1201 language into your local law" is a common ask during USTR negotiations.

I'm not competent to advise people on which countries are "safe" for this purpose, perhaps others know.

To all intents and purposes there aren't any that are functioning countries. Iran maybe, best of luck getting your code hosted there in an widely accessible way (IIRC Iran had membership until 2016 and technically does have a prohibition as a result but doesn't enforce it really).

There are a few very small island nations, North Korea, and Monaco/San Marino, though I think Monaco has an anti-circumvention provision anyway.

Israel's implementation is full of holes but they still have one, technically.

As Italian, I think you should take my words with mistrust, but as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen

That said, I guess it was shortsighted from the founding father but I guess at the time people would be often oppressed by governments not by neighbors and friends and I think this is something we need to solve as it's the challenge of our times

> as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen

Free speech by anyone to anyone is protected from government restriction. It is the government that is forbidden from punishing speech not the government that must be party to the speech else free speech would have nearly zero meaning.

> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What is oft said is that the first amendment doesn't protect you from non governmental consequences for your speech. For example you can be fired for your speech but you may not be imprisoned nor silenced by the government.

When a private entity avails itself of remedies provided by the government to limit or punish your speech your constitutional rights are infringed because it is the government acting to limit your speech even if its on behalf of a claimant.

What you describe isn't exactly the law in the U.S., but it gets at some real things:

(1) there is a separate "right of petition" in the first amendment in parallel with the rights of freedom of speech and press; the right of petition relates to asking the government to change its behavior;

(2) the courts have a notion of "core political speech", which is some of the most strongly protected speech; and

(3) the courts have a different notion of "commercial speech", which is some of the least-protected speech.

> as far as I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen

This is mostly true. But there are some special exemptions.

The real gotcha is that the courts have generally taken a dim view towards using the courts themselves to restrict someone’s speech. The Supreme Court basically doesn’t want (or maybe didn’t want given their recent changes) congress to launder free speech violations to civil lawsuits enforced by the courts. That’s kind of a neat trick that you’d generally want to suppress, which if I understand is why there are first amendment issues around defamation lawsuits, despite being purely between individuals.

How does this work with the DMCA? I dunno. But to my (non lawyer) eyes it does seem kinda like it effectively criminalizes speech, and I wonder if it should stand up to judicial scrutiny.

> I understood recently about US is that the speech is protected between the citizen and the government, not between civil entities, as business/corps and citizen

It depends. For example the 1st amendment protects a great deal of speech that in other countries would be slander, even though in that case the plaintiff is another civil entity and not the government.

I believe “place-shifting” too if there’s no profit motive. At least that’s what I recall regarding the locast court decisions.

>code is speech, and speech is protected in the US

is it really? i've never thought of it like that.

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