Ask HN: Why has DMCA Circumvention Prohibition not been repealed? | Hacker News Reader

Ask HN: Why has DMCA Circumvention Prohibition not been repealed?

I understand the high level reasoning is “government corruption”, but I’m trying to understand what efforts have been made to allow people to rip their own lawfully purchased media. Are any congresspeople fighting to repeal this section of the DMCA? Has any legislation been proposed? Which senators are most firmly advocating for this overt MPAA rent seeking? Why is this not as popular as “right to repair” considering how many more people this impacts? This is a pretty wide-open question, so anything people can add to help me understand this history of this conflict is welcome.

For those who don’t know, Section 1201 makes it illegal to break any DRM or to make or distribute software useful for this purpose. The effect is that people who have a valid license to the content must pay over and over to consume that content (once for blu-ray, once for Apple TV, once for Amazon, etc).

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Zoe Lofgren has, for the last decade, regularly led Congressional work to mitigate the damage of DMCA 1201. (See this one from a few years back https://www.eff.org/deeplinks/2017/02/fair-use-consumer-prot... ). EFF currently has a project, Apollo 1201, led by Cory Doctorow, to seek legal challenges to the law.

It can be hard, because 1201 is an implementation of an international treaty, the 1996 WIPO Copyright Treaty, which requires language on anti-circumvention technology. The Treaty was passed after language similar to 1201 failed to get traction in the US Congress before '96. Treaties, in theory, trump domestic legislation, in that the US has made a commitment to honor the treaty, so the law is meant to reflect that commitment.

However, the treaty itself only specifies that "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."; DMCA 1201 goes much further than that. So that we can imagine a fix to the law that returns the US to a more balanced implementation of this language.

However! The United States has also entered into a number of bilateral treaties with other countries, requiring them to also implement DMCA 1201 language, and many states have just cut-and-pasted the 1201 language as part of their compliance with the Copyright Treaty. The EU has similar requirements on its member nations: https://en.wikipedia.org/wiki/Anti-circumvention

You might want to read some of EFF's historic reports on the development of the law: https://www.eff.org/wp/unintended-consequences-under-dmca/ar...

Politically, there's been a concern for a number of years that re-opening the DMCA might lead to worse outcomes: ironically, the strongest advocates for revisiting or repealing the DMCA has come from the rightsholders, who feel they have an opportunity (given the tech backlash) to draft an even more draconian law. So I think that opponents of DMCA 1201 have mostly fallen back to advocating for stronger exceptions under the triennial copyright office review of the law, https://www.techdirt.com/tag/triennial-review/ where individuals and companies can push for specific exceptions to the blanket ban. This is where you'll have seen legal permission for filmmakers, videogame archivists, etc.

> This is where you'll have seen legal permission for filmmakers, videogame archivists, etc

An excellent podcast on that very topic (with some links to further reading):

https://gamehistory.org/ep-59-dmca-exemption-ruling/

Hey Danny!

> So I think that opponents of DMCA 1201 have mostly fallen back to advocating for stronger exceptions under the triennial copyright office review of the law, https://www.techdirt.com/tag/triennial-review/ where individuals and companies can push for specific exceptions to the blanket ban.

A sad thing about this strategy is that the triennial review exemptions are only allowed to exempt acts and not tools (that is, the Copyright Office can allow people to circumvent, but not allow people to publish software that helps other people circumvent). And then also that the exemptions don't autorenew, but rather expire after three years and have to be argued for again.

> that is, the Copyright Office can allow people to circumvent, but not allow people to publish software that helps other people circumvent

Publish source code in book form.

https://en.wikipedia.org/wiki/Bernstein_v._United_States

https://en.wikipedia.org/wiki/Junger_v._Daley

I know that you meant this more generally, rather than a direct response to Seth Schoen, but I'll just note that Seth is semi-famous for doing just that, with the DeCSS Haiku: https://en.wikipedia.org/wiki/DeCSS_haiku

While the Bernstein case is a great victory, there's also the 2600 case in the Second Circuit: https://supreme.findlaw.com/legal-commentary/why-2600-magazi...

Hey Seth!

It's true! In the 2000s (when Seth and I first started at EFF), the general feeling in the community was that the triennial review process was far too weak for permanent, effective change -- for the reasons given above, and more. There was serious consideration given to boycotting the process entirely. But as digital technology spread, and more of the world fell under 1201 (from garage openers to tractors), it became clear that we had to do everything -- from pushing for exceptions, to advocating for changes in the law, to litigation and challenging 1201's restrictions on speech under the first amendment.

I hope I'm not sounding gloomy here -- there are still plenty of routes to reform 1201, but for now, direct repeal or revision of the language in the DMCA is going to be quickly overtaken by lobbyists trying to use it for even more pervasive digital copyright law, and to rewrite the intermediary liability/takedown language in the DMCA.

> There was serious consideration given to boycotting the [triennial review process] entirely. But as digital technology spread, and more of the world fell under 1201 (from garage openers to tractors), it became clear that we had to do everything

Are you sure this is the best strategy? The review process seems designed as a safety valve - ameliorating the worst short-term consequences of the law, to prevent the build-up of frustration, motivation, and technical means (e.g. businesses relying on an exemption) that might produce any meaningful change. It is the red cape keeping the bull distracted, while the matador slowly jabs the bull to death.

I'm not sure at all, and this is the core of the debate. It's really a co-ordination problem: boycotting the triennial proceedings would require a unanimous action, in the face of increasing damage by 1201. So when I say "it became clear", it's not so much that the strategy was clearly better, but the calculation between a principled boycott and pragmatic involvement shifted.

> effective technological measures that are used by authors

Not in our name, please! Over many years in the creative business, music, games, writing, film, I've barely met a single soul who gave a rotten rat's arse about technological measures that are used by publishers and distributors.

Whether you like it or not, these laws are being passed in your name by regulators, standards bodies, lawmakers and lobbyists. But things can change.

So after this treaty passed at WIPO (with the language you quoted), a bunch of incredibly dedicated activists, including folks at EFF, Knowledge Ecology International (KEI), Public Knowledge, IP Justice, and many others hidden away on this list https://www.wipo.int/members/en/organizations.jsp?type=NGO , worked to wrench WIPO from being exclusively a policy-laundering venue for rightsholders, and have some representation from the folks you describe. I'd say it's a better place for it -- but of course that meant that the efforts to lock-in stronger IP language moved to more opaque venues, including trade treaties. They're still doing the work, but they need far more support and collective advocacy for those who believe in what they're doing. You might not give a rat's arse, but there's a lot of people on the other side of this argument that do, and employ people to push for these laws in every possible venue.

> They're still doing the work, but they need far more support and collective advocacy for those who believe in what they're doing.

As a writer, where do you think I can best use my talents to fight WIPO and others who presume to speak on my behalf Danny? I have approached the EFF before, asking if they'd be interested in articles on areas that _are_ in my repertoire, but clearly this is for "specialists" and I know the square root of sod-all about international copyright. But I do know that these people are misusing my professional identity by claiming to know what "authors" want.

I'd reach out to the Authors Alliance https://www.authorsalliance.org/, which seeks to represent creators, and is pretty good on these issues.

The film industry made a record-breaking $100 billion last year - https://www.forbes.com/sites/rosaescandon/2020/03/12/the-fil...

The fault lies with us. Do you pirate? Abstain from entertainment media? Or do you fund lobbying efforts to keep circumvention illegal? The numbers in the Forbes article suggest most do the latter.

This isn't really a good argument though. We live in a society and society is defined by our shared cultural experience. For better or worse, these media companies in large part define our cultural experience. Humans are social creatures, and naturally want to participate in a shared cultural experience.

Asking people not to consume media would be like asking them not to converse with other humans or not have sex. Sure, you can survive without those things, but it's not really a life worth living.

Then pirate. Call it "civil disobedience" if you're the type that enjoys flattering euphemisms.

Some people believe that part of living in a society is following its laws and using lawful means to change the law.

Laws != ethics

And simply put, my vote does not matter. The similar chucklehead gets put into office, and does the will of the monied elite. And yes, I do vote, as little as it matters.

https://www.vox.com/2014/4/18/5624310/martin-gilens-testing-...

I'm not a millionaire. I have no PAC's to my name. I do not hire or otherwise fund lobbyists. So, my only time to exert any sort of control on this system is to vote. And congress (state AND national) has only about a 3% parity with what I vote. Had I been in the monied interests category, I would get about 75% of what I wanted.

So indeed, piracy it is. Reverse engineering and talking how I did it is. Sharing "illegal number" it is. I have no other course of action.

Convince yourself that consuming for free a completely optional entertainment product that someone else created from their own labor is “ethics.”

Media conglomerates don't concern themselves with ethics when they lobby to strip you of more of your rights. But they're grateful that you continue funding their efforts in the name of ethics.

s/lobby to strip you of more of your rights/set their own terms on how they want to sell the products of the labor they acquired.

Pirates are empirically no more merciful of content distributed on more egalitarian principles and outside of "major label" distribution channels. The root of the phenomenon is acquisitiveness, not ethics. It's just fun to back-rationalize the behavior, especially in places (like HN) where the audience is largely dismissive of the underlying ethics.

> s/lobby to strip you of more of your rights/set their own terms on how they want to sell the products of the labor they acquired.

Their "terms of sale" include legally prohibiting you from unlocking your own property, even for otherwise legal purposes. Sorry, did I say terms of sale? I meant law, that applies to you whether or not you buy anything from them. There is not even the fig leaf of "you agreed to the EULA".

You say it's "your property". They say that your argument is no different from walking into a movie theater with a camcorder. Most people don't want to argue about the distribution terms of a movie; they just want to make a decision about whether it's worth $19 to watch now, or whether they want to wait until it's $1.99 instead. Media companies are right to want to serve those kinds of customers --- the majority of customers --- and are within their rights to set terms that enable them but don't enable you to create a permanent, redistributable library of their content.

You'd have the moral high ground if you were boycotting content distributed on those terms. But that's not what we're talking about. The high-horsing on piracy threads is farcical.

Before it was tenable to set the kinds of terms you're upset about, studios simply didn't make content available the way it is now. We have never had more, faster, and better access to content than we do now, and it's in spite of, not because of, piracy.

> Before it was tenable to set the kinds of terms you're upset about, studios simply didn't make content available the way it is now.

Yeah it's weird why until 1998, when the DMCA's anti-circumvention became law, we didn't stream movies over our 56 kbps modems. On the other hand, we did have VHS, which could be used to rent and copy movies, or tape broadcasts. Somehow, despite the film studio's claims and failed attempts to ban them, that didn't kill the movie industry either.

> to set the kinds of terms

I already brought this up - these are not contract terms - this is law, prohibiting unlocking your own devices, reducing your rights of ownership and transferring them to the manufacturers of your devices or software, regardless of any contract terms you accept or reject.

Sorry, but we had widespread movie piracy long before we had first-run movies on paid streaming services. I'm not sure how repeatedly pointing out that this stuff is the law is helping your argument. Nobody is forcing you to download content-protected MCU films.

Your first mistake is thinking it's about downloading movies and games. That's ONLY a small part.

It's about being able to copy and backup your own content.

It's about owning your hardware you buy, be it a phone, a computer, IoT hardware, your car, industrial equipment, and more.

It's about reverse engineering stuff you own without fear of some "copyright" taking away personal ownership of the thing.

It's about being able to freely talk about and fully explain the procedures to reverse engineer "technological preventions", especially on hardware you own.

But sure, gravitate to just downloading movies. Great way to distract from the terribleness of the DMCA and how it erodes physical ownership.

Then you're left with only one option, aren't you? Continue doing the same thing, hoping for the opposite result it has had so far.

This seems like such a weak argument. Life is full of shared cultural experiences that people don't have free access to. We talk about restaurant meals, about attending concerts, about attending sporting events (or watching them on PPV), about seeing plays, about fashion. These things all have equal or better claim to cultural importance than an MCU movie, but we all understand them to to cost money --- for some of them, like the theater, it would be deeply problematic if they didn't cost money: that's how people survive while continuing to produce the culture.

To me, the farce is laid perfectly bare by the fact that people pirate fonts. Fonts. Different fashions for the shapes of letters. Nobody can reasonably claim a right to Mrs. Eaves or Chaparral, or any kind of cultural deprivation for not being able to typeset their zines in Nueva or Myriad, but they're pirated just like everything else. They're so relentlessly pirated that it took well over a decade to get most "commercial" fonts on the web at all, and even today, using them is a mess, because we can't trust people not to pilfer them while writing comments about how they're striking a blow for open culture.

The reality --- and I think we all understand this in our viscera --- is that things get pirated when they're easy to pirate. People do it because they can, and then rationalize it back to "ethics" so they don't have to confront the fact that in some small way (often, very small, but not always), they're inflicting harm on other people. At the very least, they're inflicting harm against the concept of ethics.

Do it if you want! I can't judge! I once wanted to watch The Muppet Movie ahead of its release, so I torrented it. I felt bad and bought the pre-release on iTunes at the same time. Something snagged in Apple's backend, and for the next 8 years or so iTunes haunted me continuously to redeem the pre-release, but errored when I tried to so as to make the popup disappeared. I deserved it, and (a little) more.

In the US, typeface design is largely not copyrightable, however the TrueType font format is, as it contains actual code within it. If a font is redistributed in a pure data format, or as an image specimen, then within the jurisdiction of the US, there is no legal protection unless one has a design patent.

You knew someone was going to point this out. We get that this makes my point even stronger, right? :)

Because of all the things the electorate cares about, DMCA reform is near the bottom of the list. People are largely happy with the status quo where they can pay a few bucks a month and stream music and TV to their heart’s content.

And if a threat to this regime were to seriously arise, the entertainment and software industries — which are both still some of the highest-growth industries in the country - would take notice and scream bloody murder. These industries employ millions of Americans (including many people who frequent HN) and generate billions in revenue, and they aren’t going down without a fight.

Circumvention Prohibition is is likely a measure which has some legitimate uses which justify its inclusion in law but is applied to many things as a technicality to limit consumer freedom where essential IP/competitive advantage is not harmed by circumventing what is being blocked. It would be better to amend the law with guidance describing the difference between illicit and licit application of circumvention protection. Using this clause as a broad-spectrum way to block Right To Repair is illegitimate.

What legitimate uses can you imagine?

Regulatory capture of the industry by invested interests. It's completely legit, it even says so in the regulations.

allowing the restoration of your property to the state of functionality that was present when you agreed to pay for the product. in other words level the playing field and prevent, the prevention or reversal of a property owners right to maintain thier property

to wit: manufacturers should be restricted from circumventing repair or configuration

That's a legitimate use of circumvention, not a legitimate use of circumvention prohibition which is what my parent comment was talking about.

> considering how many more people this impacts?

people who want to repair their laptops is likely a lot more people compared to those capable and interested in running anti-DRM software so that they can get hardcopies of movies from Apple TV.

legislation that would impact a lot of people and be a big deal would be requiring the various streaming providers to allow transferring someone's purchased content between platforms for free or significantly discounted price. that is, a law which allows anyone to pay for their content only once would impact hundreds of millions of consumers, rather than a law that lets relatively few technically sophisticated users bypass their DRM. The difficulty in gaining support for such an idea should be fairly self evident.

Regulatory capture. There's lots of money in running third party repair shops, and the incumbents in that space lobby congress.

For anti-circumvention, libraries would be the main beneficiaries, and they don't do much lobbying.

> I understand the high level reasoning is “government corruption”

Then you don't understand. I know a lot of (non-tech) liberals. If you polled them, most would probably support getting rid of the anti-circumvention provision, if you explained to them what it was actually about. Many probably wouldn't, though--they like Disney+, Netflix, etc. But not a single one would spend the smallest amount of political capital to change the law.

Talking about this in terms of "corruption" is not helpful to understanding. The fact is that when you have a highly technical issue like this, most politicians will only understand it deeply enough to slot it into one of their high-level mental buckets. In this case, it's probably something like the "whiney consumer organizations versus job creators" bucket.

That's why it's not just a money issue. In the 2020 election cycle, the MPAA spent $224,018 on campaign contributions, and about $3.3 million on lobbying. The latter is mostly paying lawyers to put together PowerPoint presentations to political staff members telling them how to vote on particular issues. An author on Kick Starter recently raised over $20 million for some Sci Fi books: https://www.cnbc.com/2022/03/04/brandon-sanderson-kickstarte.... You could outraise the MPAA easily. But you'd never persuade a politician to vote differently on the issue than the bucket they were going to vote for anyway.

Another disturbing issue is the 'laundering' of DMCA analogues into other countries through trade-deals and other extra-political processes, with the general apathy and sweeping under the rug that precedes these changes.

While not directly related to anti-circumvention, the only recent positive development in the user-rights of proprietary software I can recall is an EU case by a private software vendor against the Belgian government in that courts ruled that reverse-engineering and patching of 'issues' in legitimately obtained software was not a crime and therefore the plaintiff lacked a case, even when a license prohibition applied.

Some persons were unconvinced of impact because defendant was Belgian government (they have taxpayers foot the legal bill) but the facts involved are not trivial because there have been cases with the reverse-engineering and patching of legitimately obtained video-games for purposes that are not piracy that did not end up with a positive outcome.

I see the next decade going one of two ways. Big companies attempt to attach criminal liability to perceived violations of their licenses or the likes of anti-trust wake up and we see more reinforcement of user-rights similar to the EU case.

It is allowed in specific circumstances, namely you own the rights to the work you are breaking out or are a researcher. The interpretation of the law that cause GitHub takedowns is overly restrictive and not right.

In theory if you are deprived of your ability to access a paid for work you can sue. The problem is, as you might expect, this usually happens once the company is defunct.

Someone please correct me if I'm wrong, but I was under the impression that DMCA anticircumvention didn't apply to fair use of protected content. That's to say that it would probably be fair use to circumvent DRM, say, if a journalist wanted to include a short clip from a Netflix special as part of their reporting.

That's generally incorrect. Circumvention is generally illegal, regardless of if you're using it for otherwise legal activities. Below I've included the relevant text from the law. In that specific example, though, you might have an argument that enforcement of the anti-circumvention provision violates the first amendment, like in [1] (but IANAL so I have no idea if this has already been argued/settled). Connecting this to your fair use point, fair use is part of what keeps copyright enforcement from violating the first amendment, but it's unclear how the Supreme Court would rule such an issue if it came in front of them.

> 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.

> (3) As used in this subsection— (A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) 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.

You can see how the law is written so generally as to arguably include almost anything under the definition of "technological measure".

[1] https://www.eff.org/press/releases/eff-asks-appeals-court-ru...

Thanks for the info.

> fair use is part of what keeps copyright enforcement from violating the first amendment

Fair use is the compromise the court set between the 1st Amendment and copyright; a few narrow carve-outs along the lines of "free speech zones" to serve as a pressure-relief valve undermining any real reform. The parts of copyright not overridden by fair use remain an obvious violation of the 1st Amendment—just to a marginally lesser degree. Only a full repeal of copyright could avoid the violation altogether.

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