A bill in Congress legalizes cell phone unlocking and fixes the DMCA
fixthedmca.org
fixthedmca.org
(Source: my cousin and his wife were congressional staffers for several years.)
More seriously though, I have definite plans to build a click-to-call tool in the next couple of weeks, but this news was sprung on my late yesterday, leading to a mad rush to get that page ready in time for this morning. Next time there's an action like this for FixtheDMCA, there'll definitely be a way to call. And if I build it I'll almost certainly open source it so others can do the same. Sunlight Labs have a great API for looking up rep's phone numbers that means its really just a Twilio integration away.
I'm not sure how you do this on Android, but for the iPhone it couldn't be much simpler[1]. Also, most mobile devices will detect and enable any phone number they find on the page, so just putting it there and easy to find is often enough.
[1] http://developer.apple.com/library/ios/#featuredarticles/iPh...
Unless things have changed a lot since I was there, the real advantage of calling a congressional office is that you're entered in a database faster with your associated issue. It's not like your congressperson answers the phones. That's what the interns and staff assistants do, who hold zero influence.
Be patient with the person taking your call. Many people who call don't even do it right. They contact someone who isn't their senator or representative, which gets ignored. They just say "Don't vote for X!" and hang up without providing contact information.
Also, if you don't vote, many representatives have a database from their board of elections saying which registered voters actually showed up to vote. You're put on the bottom of the stack.
sigh.
What a naive thing to say. The cornerstone of representative government has always been supporting a candidate whose views align with your own. This includes campaign contributions along with voting for the candidate, volunteering for their campaign, and getting out word that they're running.
I think originally it was something to do with having land and privilege, or being a free citizen and not a slave. And definitely male... Then you could have a say.
And naive? Sure is, I like the naive view of democracy - that we all ought to have equal say in the way things are run, regardless of monetary or time contributions to a campaign.
http://house.gov/htbin/findrep?ZIP=$YOUR_ZIP_HERE
http://www.senate.gov/general/contact_information/senators_cfm.cfm?State=$YOUR_STATE_TWO_LETTER_ABBREVIATION_HERE
Note that a lot of these folks have a "request a meeting" thing were you can request a face to face meeting. IF you can actually land one, that's probably the most powerful way of interacting with them. But, while I haven't ever tried myself (hangs head in shame) I am guessing you have to be "somebody" or be fairly lucky, to actually get a meeting.
Congressmen value usable research and testimony. If you can hand them a credible argument for your point, well-condensed, well-organized, well-researched, and give a solid political bottom line (they are all about getting elected, you know) then you're ten miles ahead of the pack.
Make sure they catch and make a note of "the Unlocking Technology Act - H.R. 1892" part, as that's what they'll note down and use in their own counts of how many calls they've received.
Truly, I cannot recommend this experience highly enough. Call! It only takes a few minutes and you'll be glad you did.
Copyright is some seriously fucked up shit right now. It has been dominated by big money interests for the last 50 years.
> Such as..?
Trying to revise or remove the DMCA wholesale would be a much more difficult undertaking, and correspondingly less likely to succeed.
(I recommend reading the bill to everyone, by the way. It's only five pages long.)
Correct, the DMCA has made it possible for linking to infringements to be found illegal. This bill doesn't touch that. You can't just handwave it to the courts when the DMCA is the foundation of their opinion. The DMCA is still responsible for its unintended consequences.
I'm in complete agreement. But fixing that issue will be more difficult than fixing this one, in my opinion. Getting this bill passed would do some good even if it is overstating things a little.
The takedown procedure is not, stricly speaking, "a guilty until proven innocent" system. Its a system that provides immunity from liability for illegally distributing copyright protected content provided that it was originally submitted by someone other than the distributor, and the distributor stopped when notified by the owner of the copyright. (It, likewise, provides immunity to the distributor for claims by the submitter for stopping distribution provided that the distributor restores the distribution once the submitter provides a counternotice.)
But the takedown procedure itself doesn't create new penalties or presumptions of guilt, it just provides conditional protections from any existing penalties for certain acts provided that those acts are discontinued on specified forms of notice.
So in practice the DMCA takedown procedure provides a method of immediately (and sometimes permanently) removing content (not necessarily infringing) from any major provider.
As an example, the method of removing allegedly infringing content from YouTube is not a DMCA takedown but it is a result of that mechanism.
I don't think the DMCA takedown procedure is much involved. The actual problem that causes that is the resource imbalance between content owners and individual users. Without the DMCA takedown procedure and its associated liability shields, instead you'd have content owners sending threats to sue to the content hosts, who would have to choose whether they'd like to fight the content owner or keep the affected client.
With the DMCA takedown procedure, really, its exactly the same thing, except that the host has more security that they will have no liability to the purported content owner for any past distribution if they comply with the request.
We know this to be true, becuase this was the situation that was occurring before the DMCA which led to the pressure from content hosts that resulted in the inclusion of the safe harbor provisions that include the "takedown procedure" and the related counter-notice restoration procedure.
The situation before the DMCA was preferable because it involved only the general legal system rather than a badly-designed special case.
It's not merely the result of a resource imbalance but of a fundamental misapprehension of the nature of content ownership - the set of 'content owners' recognized in practice by the DMCA is not the entire set of owners of content.
It provides an equally special incentive to comply with users; the safe harbor has two sides.
The difference in effect is the same as the difference in effect in threat of litigation absent the safe-harbor: the difference in resources on the two sides and the significance of the liability the host might face from either side.
> The situation before the DMCA was preferable
If you didn't want to have big businesses freely hosting user-submitted content, maybe. Content owners weren't the backers for the safe harbor (they wanted the freedom to sue first and get money), content hosts were. It doesn't create additional incentives for content hosts to comply with content owners (real or purported), it removes pre-existing opportunities for content owners (again, real or purported) to extort content hosts.
It provides very nearly no incentive whatsoever to comply with users. What provisions it does provide are practically unenforceable due to absurdly high standards for users and absurdly low standards for 'content owners'.
I don't care a whit for your interpretation of the law. Especially when your interpretation flies in the face of the text of the DMCA (see in particular sec 202 on standards for perjury, which differ significantly for notices and counter-notices). I care about results - and the results, across dozens of major content hosts, speak for themselves.
The DMCA has not only failed to protect users and content creators who aren't 'content owners', it has also given rise to independent policing mechanisms modeled on and derived from it but with even fewer protections.
The results are basically identical to the pre-DMCA situation except that the risk of monetary damages to content hosts is less -- most content hosts takedown material immediately on request by purported content owners to prevent lawsuits, and most content hosts don't care much about complaints from users (including counter notices) because the litigation threat is miniscule. The DMCA safe harbor provides a defense against litigation for content hosts who comply with notices and counter-notices, but it doesn't change the fact that, with or without the safe harbor, the only litigation threat content hosts are worried about is litigation by purported content owners, not litigation from users (because, in the first place, they already have an agreement with users, and content hosts are careful to construct such agreements to foreclose any litigation threat resulting from the host deciding not to host any particular content.)
Any imbalance in the perjury provisions that makes counter-notice more risky is irrelevant, because the user-side safe harbor is irrelevant, because a safe harbor only matters when, without the safe harbor, there is a threat of litigation that matters.
My point is, and remains, that the problem you are referring to in results goes far deeper than the DMCA safe harbor, and balance between the two sides in the safe harbor provisions don't matter, because only one side of the safe harbor has any meaning -- content hosts don't need a safe harbor against users.
That being said, I'd support much stronger standards on the notice side, not for some completely pointless idea of balance, but because the practical results of false notices are the suppression of speech; for that reason, I'd propose creating the following standard for liability for material misrepresentation in takedown notices:
Any material misrepresentation in a notice (whether knowing or not) would make the party filing the notice liable for actual damages to content hosts and/or users resulting from notice.
Any material misrepresentation in a notice where the filing party either knew the representation was false, or reasonably should have known the representation was false, or cannot show by clear and convincing evidence that they had a reasonable basis to believe was true with high confidence, will also allow punitive damages.
And the entire content of a notice should be under penalty of perjury.
But none of this is about balance between notice and counter-notice, which -- aside from being irrelevant -- shouldn't even be a goal in the first place, its about what the standard needs to be given the that what is being created is a government-provided incentive to suppress speech.
It's absolutely a "shoot-first, ask questions later" system that is strongly biased in favor of the accuser. It's okay to provide a quick way to take down infringing content, but it has to come with strong penalties and reparations for cases where the accuser abuses the power.
I'm not at all arguing in favor of eliminating the safe-harbor provisions - I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.
Without the DMCA safe harbor, the content host would be in a very similar position when presented with a demand to remove the content from a content holder. The only difference the safe harbor provides is that the content holder can't be sued for content they accept and distribute but don't exercise editorial control over unless the content owner gives a takedown notice and the content host ignores it, so that, as a consequence, content owners can't skip the whole demand step and just start filing low-chance-of-success, high-reward lawsuits against deep-pocket defendants.
> I'm not at all arguing in favor of eliminating the safe-harbor provisions - I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.
> I just want the penalties for a false notice to be at least as harsh as the penalties for a false counter-notice.
The penalties for both are the same, and are specified in the same paragraph without distinction, at 17 USC 512(f):
Any person who knowingly materially misrepresents under this section- (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Take a look at the required elements of a takedown notice, and the required elements of a counter-notice. Look at which statements are made under penalty of perjury. There is a noticeable lack of equal protection there. Nowhere is the accuser required to perform any kind of due diligence to ensure that they have a justified takedown notice.
You can try to preempt things by hosting everything yourself, but they can always go after your ISP. Unless you own the whole internet[1], there's somebody who's not you who can be blackmailed into disabling access to your content.
([1] or otherwise render the rest of the internet ineligible for safe harbor, such as by making them financially benefit in a way directly attributable to whatever activity may be alleged to be infringing.)
Refusing to settle for anything short of perfect is often a bad trait, sure.
But if you don't have a "perfect" goal to aim for, what you end up with is going to be worse than it could have been.
And that's what the saying means...
Especially important for technologists and entrepreneurs.
I detest speaking in platitudes when plain english will do fine.
Using a widely-understood word or phrase to express an idea concisely is sort of the basis of language. Most people prefer a terse expression over "plain English" several times the length.
If chipping away at the DMCA turns out to be popular enough more politicians will be likely to do it.
It's easier to enshrine rights in law than to oppose every iteration of PIPA and CISPA, every time they try to let it slip through unnoticed.
If someone has information they only want licensed people to see, would circumventing a technological measure that controls access to that information be allowed under this bill? For example, publishers of stock market analysis which is released only to licensed subscribers.
Is this FUD? The point of DMCA anti-circumvention is that it makes a crime out of things that were otherwise legal, not tack on charges to things that are illegal for other reasons.
FTFA:
"- It amends Section 1201 to make it clear that it is completely legal to "circumvent" if there is no copyright infringement.
"- It legalizes tools and services that enable circumvention as long as they are intended for non-infringing uses.
"- It changes Copyright Law to specify that unlocking cell phones is not copyright infringement."
Or you could read the text the bill adds to DMCA:
It is not a violation of this section to use, manu- 8 facture, import, offer to the public, provide, or otherwise 9 traffic in any technology, product, service, device, compo- 10 nent, or part thereof that is primarily designed or pro- 11 duced for the purpose of facilitating noninfringing uses of 12 works protected under this title by circumventing a tech- 13 nological measure that effectively controls access to that 14 work, unless it is the intent of the person that uses, manu- 15 factures, imports, offers to the public, provides, or traffics 16 in the technology, product, service, device, component, or 17 part to infringe copyright or to facilitate the infringement 18 of a copyright.’’.
emphasis added by me.
It's not actually a copyright issue. Whether the DMCA (or something else) covers it, I don't know but would love to hear.
The DMCA wouldn't make it legal for me to unlock your phone without your permission, only mine.
> If someone has information that they only want certain people to see, would circumventing a technological measure that controls access to that information be allowed under this bill? For example, internal documents, trade secrets and documents under NDAs?
Among other things, this would generally be a violation of the CFAA.
> If someone has information they only want licensed people to see, would circumventing a technological measure that controls access to that information be allowed under this bill? For example, publishers of stock market analysis which is released only to licensed subscribers.
Depends what you mean. If an unlicensed subscriber tried to gain access from scratch, then the CFAA would be applicable; if a licensed subscriber leaked large portions of the document to an unlicensed subscriber, then it would at least be a (standard) copyright violation. (If they only leaked specific bits of information, it probably wouldn't involve circumventing a technological measure, but contract law would be applicable.)
If it's already illegal to have the document, that is the crime. Aggravators like these create perverse incentives and invite abuse.
> (3) It is not a violation of this section to use, manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or pro- duced for the purpose of facilitating noninfringing uses of works protected under this title by circumventing a technological measure that effectively controls access to that work, unless it is the intent of the person that uses, manufactures, imports, offers to the public, provides, or traffics in the technology, product, service, device, component, or part to infringe copyright or to facilitate the infringement of a copyright.
Also makes it very easy to contact your representative.
A bill like this will have a very hard time passing. This was originally suppose to be only about unlocking cell phones for use with other carriers. Now conditions have been added that make the bill very arguable. It is asking for more than we can take. Companies like Apple and Sony will be very likely against this.
Every part of me wants this to pass, but this bill is sadly unlikely to. ... sadface
A very lovely lawyer by the name of Jennifer Granick at Stanford Cyberlaw helped me out pro bono, the case was dropped, and Jennifer went on to petition the Librarian of Congress to have an exemption for unlocking added. That exemption was granted in 2006, renewed in 2009, then dropped in 2012. I haven't been in the unlocking business for a long time, but I thought I should do something about it. I started the WH petition, which got 114k signatures and a positive response from the WH. But I realized that the real culprit is DMCA Section 1201, it really is just a really poorly written law, and it effects a whole load of people. So, with the help of some friends (shout outs to Azat, Joe, Austin and Dmitri) we threw up the FixtheDMCA site over the course of three days, and I've been maintaining it since. Meanwhile I've been trying to coordinate with folks like the EFF and Public Knowledge who are pushing things on the DC side.
For me it's kind of a fun break from startups, and I kind of feel like it's paying back the favor J. Granick did to me back when I was a college student.
I would really love to hear some decent, reasoned arguments why the DMCA shouldn't be fixed (and by fixed I mean limited to cases of copyright infringement only), as I think at a certain point the content lobbies will probably start making them and I'd love to have responses ready.
I doubt there can be any decent arguments, since DRM itself is by definition indecent, and DMCA 1201 is DRM derivative.
Seriously? C'mon!
Edit: Should be fixed now.