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Comment by jdietrich | Hacker News Reader

Circumventing a copy-prevention system without a valid exemption is a crime, even if you don't make unlawful copies. Copyright covers the right to make copies, not the right to distribute; "doing what you want with it yourself" may or may not be covered by fair use. Whether or not model weights are copyrightable remains an open question.

https://www.law.cornell.edu/uscode/text/17/1201

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Actually, in terms of copyright control "The Federal Circuit went on to clarify the nature of the DMCA's anti-circumvention provisions. The DMCA established causes of action for liability and did not establish a property right. Therefore, circumvention is not infringement in itself."[1]

https://en.m.wikipedia.org/wiki/Chamberlain_Group,_Inc._v._S...

Circumvention is not infringement, but the DMCA makes it a separate crime punishable by up to 5 years in prison.

>Circumventing a copy-prevention system without a valid exemption is a crime, even if you don't make unlawful copies. Copyright covers the right to make copies, not the right to distribute; "doing what you want with it yourself" may or may not be covered by fair use. Whether or not model weights are copyrightable remains an open question.

If that is the law, it is a defect that we need to fix. Laws do not come down from heaven in the form of commandments. We, humans, write laws. If there is a defect in the laws, we should fix it.

If this is the law, time shifting and format shifting is unlawful as well which to me is unacceptable.

Disclaimer: As usual, I anal.

Time shifting is protected by 40 years of judicial precedent establishing it as fair use.

This is being tested in the courts currently, https://torrentfreak.com/appeals-court-hears-riaa-and-yout-i...

DMCA 1201 is written so broadly that any feature of a product or service can be construed to prevent copying, and thus gain 1201 protection.

I don't think YouTube intended regular uploads to have DRM, if only because they support Creative Commons metadata on uploads, and Creative Commons specifically forbids the use of technical protection measures on CC-licensed content[0]. On a less moralistic note, applying encryption to all YouTube videos would be prohibitively expensive because DRM vendors charge $$$ for the tech.

But the RIAA wants DRM because, well, they don't want people taking what they have rightfully stolen. So YouTube engineered a weak form of URL obfuscation that would only stop very basic scrapers[1]. DMCA 1201 doesn't care about encryption or obfuscation, though. What it does care about is if something was intended to stop copying, and if so, if the defendant's product was designed to defeat that thing.

There's an interesting wrinkle in DMCA 1201 in that merely being able to defeat DRM does not make something illegal. Defeating DRM has to be the tool's only function[2], or you have to advertise the tool as being able to defeat DRM[3], in order to actually violate DMCA 1201. DRM vendors usually resort to encryption, because it makes the circumvention tools specialized enough that they have no other purpose and thus fall afoul of DMCA 1201. But there's nothing stopping you from using really basic schemes (ROT-13 your DVDs!) and still getting to sue for 1201.

Going back to the AI ripping question, this blog post is probably not in and of itself a circumvention tool[4], but anyone implementing it is very much making circumvention tools, which are illegal to distribute. Circumvention itself is also illegal, but only when there's an underlying copyright infringement. i.e. you can't just encrypt something that's public domain or uncopyrightable and sue anyone who decrypts it.

So the next question is: is AI copyrightable? And can you sue for 1201 circumvention for something that is fundamentally composed of someone else's copyrighted work that you don't own and haven't licensed?

[0] Additionally, there is a very large repository of CC-BY music from Kevin MacLeod that is used all over YouTube that would have to be removed or relicensed if the RIAA were to prevail on this case.

I have no idea if Kevin actually intends to enforce the no-DRM clause in this way, though. Kevin actually has a fairly loose interpretation of CC-BY. For example, nobody attributes his music correctly, either the way the license requires, or with Kevin's (legally insufficient) recommended attribution strings. He does sell commercial (non-attribution) licenses but I've yet to hear of any enforcement actions from him.

[1] To be clear, without DRM encryption, any video can be ripped by hooking standard HTML5 video APIs using an extension.

[2] Things with "limited commercial purposes" beyond breaking DRM may also be construed as circumvention tools under DMCA 1201.

[3] My favorite example: someone tried selling a VGA-to-composite adapter as a way to copy movies off Netflix. That is illegal under DMCA 1201.

[4] To be clear, this is NOT settled law, this is "get sued and find out if the Supreme Court likes you that day" law.

Not really. The fair use status of time shifting isn't in question there by either party.

Your comment confused me, but I'm very interested in what you're getting at.

> Circumventing a copy-prevention system without a valid exemption is a crime, even if you don't make unlawful copies.

Yep, this is the DMCA section 1201. Late '90s law in the US.

> Copyright covers the right to make copies, not the right to distribute

This is where I got confused. Copyright covers four rights: copying, distribution, creation of derivative works, and public performance. So I'm not sure what you were getting at with the copy/distribute dichotomy.

But here's a question I'm curious about: Can DMCA apply to a copy-protection mechanism that's being applied to non-copyrightable work? Based on my reading of https://www.copyright.gov/dmca/:

> First, it prohibits circumventing technological protection measures (or TPMs) used by copyright owners to control access to their works.

That's not the letter of the law, but an overview, but it does seem to suggest you can't bring a DMCA 1201 claim against someone circumventing copy-protection for uncopyrightable works.

> Whether or not model weights are copyrightable remains an open question.

And this is where the interaction with the wording of 1201 gets interesting, in my (non-professional) opinion!

Here is the relevant text in the law:

> No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

The inclusion of “work protected under this title” makes it clear in the law, though I doubt a judge would rule otherwise without that line. (Otherwise, I’d wonder if I could claim damages that Google et al. are violating the technological measures I’ve put in place to protect the specificity of my interests, because it wouldn’t matter that such is not protected by copyright law.)

Also not an attorney, for what it’s worth.

It seems clear from this definition especially:

> (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

In this case there is no copyright owner.

Right, that’s what I was getting at with my parenthetical. Obviously the work has to have an owned copyright in order to be protected by copyright law.

sorry, yes, reread your comment and dirty-edited mine

This is interesting. I wonder could you use it as a basis for “legally” circumventing a technology by applying it to non-copyrighted works.

If you mean that you might be able to decrypt a copyrighted work because you used that same encryption method on a non-copyrighted work, then definitely not. The work under protection will be considered. (Otherwise, I am unsure what you meant.)

From what I recall, it was the actual protection method that was protected by DMCA - when DVD protection was cracked it was forbidden to distribute a particular section of code so they just printed it on a Tee-shirt to troll the powers that be.

Better yet just print the colors that represent the number, see https://en.m.wikipedia.org/wiki/Illegal_number

But then again, knowing the number is a far cry from using that number to circumvent DRM

Presuming you are referring to this: https://en.wikipedia.org/wiki/AACS_encryption_key_controvers...

> Outside the Internet and the mass media, the key has appeared in or on T-shirts, poetry, songs and music videos, illustrations and other graphic artworks, tattoos and body art, and comic strips.

Using the encryption key to decrypt the data on a DVD is illegal “circumvention” per DMCA 1201, if it’s done without authorization from the copyright owner of the data on the DVD. If it were really illegal to simply publish the key on a website, then printing it on clothing that they sold instead would not be a viable loophole.

I’m glad it is still referred to as a controversy that they were issuing cease and desist letters for publishing information when the actual crime they had in mind, which was not alleged in the letters, is using the information to decrypt a DVD.

Publishing the key is a crime but even “discovering” the key is a crime. My toy thought is that you could legally do key discovery using non-copyrighted media though of course now that I think about it why would it be ciphered in that case LOL

just imagine, like just for a second how it becomes illegal to train anything that does not then afterwards produce, if publicly used or distributed, a copyright token which is both in the training set - to mark it - and in the produce - to recognize it.

so this is where it all goes in several years, if i were the gov.

Is using millions of copyrighted works to train your AI a valid exemption? Asking for a few billionaire friends.

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