Downloading a video should be “fair use” as recording a song from the radio

Probably unworkable for the time being.

Of course it is. That's the whole point of the three strike system.

Patent trolls don't make the laws, they just exploit them. Copyright monopolists literally make the laws and then complain that the whole world isn't following them. They spend ridiculous amounts of money on lobbyists and essentially buy whatever laws they want. Leverage courts? Copyright monopolists will literally leverage the might of the US government and military to enforce US laws overseas. Look up US Trade Representative reports on "notorious markets" which is all about getting foreign countries to enforce US copyright law as if they had nothing better to do than police imaginary american property. It's packed full of language like "stakeholders" which is code for these monopolists. It's like they're the bosses of the US government.

- Is strong enough to keep you from copying the thing

- Has the effect of keeping you from copying the thing

Congress intended the latter meaning and US courts adopted that. The first meaning would be self-defeating: once someone figured out how to break a copy protection system, it would no longer be effective, so you'd only be able to prosecute the first person to break the system.

If effective meant "is strong enough" I don't think DVD CSS would count because they specifically used export-grade encryption. The rule (part of ITAR, AFAIK) was that 40-bits was the max entropy you could have, specifically so the NSA could break foreign-operated encryption systems. But this is kind of silly - computers are getting faster all the time, so it seems odd that a measure considered copy protection yesterday would stop being copy protection today just because we can crack passwords faster.

[0] Transposition is the concept of copying EU regulations into member state law. I'm using the term slightly broader than EU law. While WTO rules don't have a direct transposition requirement, USTR conditioned lots of trade deals on transposing DMCA 1201 into local law.

The DMCA has no such provision; if a work is DRM-encumbered, it always enjoys the anti-circumvention protections of the DMCA. It’s one of the main reasons why I think works available only with DRM shouldn’t be eligible for copyright protection: the presence of DRM prohibits the creation of an archive-appropriate copy (in a legal sense, not in the quality sense) that can survive the copyright term of the work. If the owner of a work wants to only release it with DRM, they have to rely on other laws with higher burdens of evidence to provide legal protection.

No. "Effective" is defined in section 1201 as meaning that the technological measure prevents copying "during the normal course of its operation" -- i.e., the "happy path" of the code prevents unauthorized copying. No matter how trivially the code may be broken, breaking it is a felony. A simple bit of JavaScript embedded in a page that prevents right clicks (to download images) would be an "effective technological measure" under the DMCA. If you put up a web page showing how to get around this with Chrome developer tools, you are "trafficking in circumvention tools" and can be found civilly/criminally liable under the DMCA.

Note that there are Library of Congress exceptions for circumventing, but not for trafficking. So you can figure out how to, say, rip DVDs yourself if doing so falls under a LoC exemption. But if you then turn around and publish how to do it, you are still in violation of the DMCA.

>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.

Which sounds like basically anything they call DRM is DRM.

My objection to the RIAA's copy protection argument is that they did not actually create the copy protection measure. They are alleging that some third party's product feature happens to look close enough to copy protection that it should count as such. Would they be able to sue YouTube if they were to stop rotating their URLs? Do social media platforms suddenly have an obligation to continue to maintain features that accidentally frustrate illegal copying of text? Do I have to reimplement spacebar heating?[1]

Another potential objection would be that rotating URLs are not copy protection. This may work, but keep in mind: 17 USC 1201 has no bounds on the scope of copy protection beyond "it has to somehow stop you from copying a thing protected by copyright". Encryption and scrambling systems are explicitly named, but the way the law is currently drafted, anything can be a copy protection measure. There's a lot of language defining existing copy protection systems they wanted to grandfather in (e.g. Macrovision) but nothing limiting the scope of future systems.

[0] If accepted, this would be the widest reading of DMCA 1201 that I've seen accepted by a court of law (as a non-lawyer). Yes I am counting the printer cartridge and garage door opener shenanigans of yesterdecade. Those were bog-standard "designing the product to commit three felonies a day" kinds of copyright abuse and the courts smacked them both down.

[1] https://xkcd.com/1172/

The court thinks that base64 is a legitimate way to establish copyright protection online.

Yeah, not kidding you. The lawyers are this stupid.

Honestly I think the law is broken, because it is designed by people not capable of doing technological decisions, for technologically relevant cases. It is gonna take years to unfuck this.

* duh, they don't even know differences of encoding vs encryption...

They are: https://developers.google.com/widevine/drm/overview

Because most video is encrypted, this effectively reverses Betamax and bans home video recording with DVRs without authorization from the copyright holder.

It's particularly disappointing that the copyright office has flatly refused to authorize 1201 exemptions for non-infringing format-shifting or space-shifting.

One's "heart" is at least as exploitable as a democratic law system.

Hollywood wanted a bill that would make it illegal to make certain copying tools. This was hot off the heels of the music industry getting a technology mandate for copy protection on digital audio tape (which would eventually be mooted by MP3 players, see RIAA v. Diamond). The problem is, technology mandates are difficult to draft and have significant problems (sometimes it's legal to copy things). So instead of banning copying tools altogether, they made them opt-out. If the copyright holder protects a work from copying, you can't sell the tool that makes it copyable.

This created a drafting problem: what constitutes protection? At the time 1201 was drafted the biggest copy protection in force was Macrovision, a system intended to make VCRs copying tapes record an unusable signal. So they just copypasted Macrovision into the DMCA. But there's all sorts of other ways you could copy protect things. Software was the most creative with all sorts of dastardly ways to make nonstandard media, ways to check for that media, ways to check that your checks hadn't been changed, ways to encrypt the binary so you can't disassemble it, ways to check for debuggers so you can't copy the disassembled version of any of the above checks, etc. All of that is way too uncertain to draft into the bill.

Congress's answer was to say that anything can by copy protection as long as it keeps you from copying things. This is extremely, offensively overbroad. And it also triggered a slew of new attempts to turn 1201 into a generalized "contempt of business model" tort. We had lawsuits over printer ink and garage door openers, because it's trivial to just smuggle more software into the design of whatever product you want to 'protect.' Thus nobody wants to touch any sort of adversarial compatibility, because that carries insane liability now, and since everything needs software now we've effectively ended capitalism and regressed to feudalism.

It is a mistake to think of law as a substitute for morality. Obviously criminal does not equal immoral. However, we can think of laws as a solution to coordinated action problems and economic "game balance". If an entity is too powerful and abusing their power, we can use the law to cut them down to size. When Congress makes mistakes in drafting the law, we create the ability to build illiberal empires. But empires are not creatures of the law. They would still exist without it, making their own laws that would be far worse than the ones Congress gives us.

You don't want to know what kind of laws Tim Cook would write if he was freed from having to comply with US law.

- Only capable of breaking copy protection

- Have minimal commercial utility other than to break copy protection

- Are advertised as being able to break copy protection

If you sold someone an aux cord with the marketing slogan "Copy music off Spotify and stop paying for your subscription", that'd violate 1201(a)(2) because of that third prong[0]. There's also plenty of copy protection circumvention tools that DON'T trip 1201(a)(2) because they aren't marketed as such and have noninfringing uses. For example, Google Chrome. You can use it to bypass right-click blockers because it lets you open Devtools without right-clicking. However, browsers have loads of commercial utility outside of this, and they don't specifically advertise their ability to get around annoying right-click scripts, so they're legal.

We don't normally contemplate this sort of thing because most DRM is specifically designed to be both obvious and separable from other permissible behavior. You cannot accidentally write a DVD decryptor that doesn't trip 1201(a)(2). This has led to people mistakenly assuming that the DMCA requires encryption to be involved or something for a copy protection circumvention tool to be illegal.

[0] I've actually seen this happen. There was someone selling VGA cables marketed as a way to copy Netflix.

The Amiga's X-COPY, on the other hand...

Implementation among signatory countries is high enough to laugh when people say "Well, this doesn't affect me because I'm not American." Unless you live in North Korea or Russia, DMCA 1201 applies to you.

Copyright law is so foundational to world trade that the only way 1201 would get repealed would be if there was some kind of mass uprising against copyright overreach in many signatory countries. In that case, so many large countries would have repealed their DMCA 1201 equivalent legislation that nobody would dare actually try to enforce WTO sanctions against them. At worst, a few countries would demand some horse trades[1].

Practically speaking, however, democracies are bad at protecting against small harms exacted against large numbers of people[2], so this never happens. Europe has the Pirate Party but the most successful national iterations of it have had to adopt broader Green[3] and technolibertarian agendas in order to have any semblance of electoral viability. In the US, first-past-the-post is an insurmountable hurdle despite the fragility and incompetence of our two major parties. Here, political issues don't so much form new parties as much as they infect the shambling corpses of existing ones.

Barring that, if only one country decided to repeal their anti-circumvention laws I imagine there'd be a lot of grumbling from the US or Japan, potentially new tariffs, but no outright sanctions. The weird part about world trade is that a lot of these provisions are only enforceable on very poor countries. China blatantly violates WIPO all the time and we, practically speaking, cannot quit them. There is no international leviathan capable of, say, rolling tanks on Beijing and demanding market access and copyright enforcement.

[0] https://en.wikipedia.org/wiki/Policy_laundering

[1] Term of art for "unrelated and usually minuscule things used to bargain for a larger purpose"

[2] e.g. how Intuit got the US government to not provide tax preparation services or software to the public for a decade and a half so they could sell their own offering. It's a thing that annoys people but not enough to get voters to flip sides.

[3] including German "Green", i.e. "nuclear is bad, so we shut down all our nuke plants and started burning lignite[4] instead"

[4] What's lignite? Lignite balls.

There was a recent Cult of the Dead Cow release that claims "encrypt all the things, Tor but for phones" or some such but I haven't studied it to know how much is aspirational https://gitlab.com/veilid/veilid#welcome-to-veilid https://twitter.com/VeilidNetwork https://nitter.net/VeilidNetwork

    brew install yt-dlp

    alias vget=yt-dlp
    alias aget='vget --extract-audio --audio-format mp3 --audio-quality 4'

    # https://opencollective.com/homebrew
    # https://github.com/yt-dlp/yt-dlp/blob/master/Collaborators.md#collaborators

We also see that even with these protectionist policies, only a select few are ever even able to be economically viable, let alone successful. Art's opportunity cost is so front-loaded that it's difficult to produce things while working full time, so the majority of potential successes are prevented from even starting. And then the artistic process is impeded by these laws, as rentiers cry "similarity" over the most absurd things, which creates a chilling effect. It's particularly bad in music.

The best way to support the arts is UBI and the abolition of copyright.

This reasoning is taken at face value in most discussion but should be challenged. A lot of assumptions and potentially specious logic is embedded here, and it's not clear and obvious that any of the following are true:

* it is impossible to make money from ideas after they are made public

* Paying people to encourage making ideas public increases the amount of value

* most ideas are worth anything at all

* that the most valuable ideas will be made public even with these protection regimes in place

It's arguable that even though there was less information out there before copyrights and patents became a thing, that people were still driven to create art and science, and the quality per unit might have even been higher. And even with patent and copyright in place, truly valuable ideas are still kept secret.

The core value proposition of copyrights and patents is to make middlemen money.

This is naive reasoning. People have been publishing content without any DRM and have been earning money regardless. There are even people who don't care whether they make money or not. So, monetary incentive is not a must for ideas, or any kind of work, to become public. To the contrary, such incentives drive out good ideas, or works, in favor of bad ones, which only care about the money and not the benefit of the society.

Funny joke. Everybody laughs.

Not that the current term we have isn't extremely too long. And whole concept of lifetime being involved isn't just weird.

Ain't that some bullshit.

This does look pretty slick though.