Debunking (some) DMCA Myths 425
An anonymous reader writes "C|Net's News.com is running an article under their Perspectives section about some of the myth and hype surrounding the DMCA. The author talks about how the EFF is exaggerating the danger from the DMCA. The author mentions that although "the DMCA is both an egregious law and a brazen power grab by Hollywood, the music industry and software companies", groups like the EFF are not much better, engaging in "fear-mongering" and scare tactics to increase opposition."
Lawrence Lessig (Score:4, Interesting)
Having said that, Lawrence mentions a legal battle that took place in England in the 1700's in an attempt to get Shakespeare into the public domain. Originally, English publishers managed to win a court case which said that they owned a perpetual copyright over Shakespeare.
Five years later they lost, and Shakespeare entered the public domain.
Rosen, Valenti et al are students of history. They know that the door swings both ways. I believe their thinking is that they should grab as much land as they are allowed to grab, so that when the door swings back, maybe it will be left leaning a bit to their side.
Personally I hope it swings back and flattens their faces, but we shall see.
KWTCMA
Yeah, right. (Score:1, Interesting)
really? (Score:3, Interesting)
EFF is just waking up the sheep (Score:2, Interesting)
Fear and Loathing in Las Vegas (Score:3, Interesting)
Astonishing... (Score:5, Interesting)
The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero
True, but not all speeches and research is presented at an 'academic conference,' now are they. It seems this implies that the author does not support research outside of a institution such as a business or university. Do employees of these places now have more rights than other people? If that's true, i'd be even more against the DMCA than the view of it they're trying to debunk!
Legal merit was never the question... (Score:4, Interesting)
The EFF is right. The chilling effects are real. That research can be stopped or quashed simply by a law firm's letter head containing the four letters DMCA is an egregious tragedy.
Declan says the law is bad. I agree. It is used to do evil things by evil corporations. Throw it out. Don't defend it. And certainly don't chastize the EFF.
Is the EFF accidentally PART of the problem? (Score:5, Interesting)
Some say that making such a big deal out of those (relative to how big of a deal they were initially) helps to motivate the public against the DCMA.
This is most likely true.
But what else can it do? It can motivate the less tech and law savvy people (IE: University administrators that control the flow of research funds) to cave immediately to nastygrams that would never manage to hold up in court.
The FUD put out on some (not all, and mostly those related to Acadamia) of the DCMA cases has allowed Hollywood to use the DCMA as a bluff, knowing that most administrations will cave instead of taking it to court.
The DCMA itself isn't as far reaching as many say it is, but by saying it is, they may have managed to allow Hollywood to use it like it is (that far reaching), unchallenged.
Who's exaggerating ? (Score:4, Interesting)
On the other hand any exaggeration by the EFF pales into insignificance when compared to the exaggeration by the entertainment industry (and others) of their new rights under the law. We've seen many people threatened with dumb lawsuits which have no merit or takedown orders used to stifle free speech (scientology anyone ?).
And in a further exaggeration the entertainment industry claims that unless it gets even more draconian laws passed it will be put out of business.
Don't Ignore the Snakes (Score:5, Interesting)
After 2600 and DeCSS, why yes, yes I am scared witless about being sued under the DMCA. All I have to do is make something, someone finds a way to use it for copying some material, and I'm in deep trouble.
It does not matter that the DMCA doesn't apply to many situations. Most people don't know exactly what the DMCA covers...all that needs to happen is someone charges me with violating the DMCA. Regardless of whether the charge ends up being valid, you have been "tainted" and most people won't understand just how false the charges were. Having to defend yourself against these charges can result in large financial losses, not to mention the possibility of being fired.
Sometimes the method of determining the intent of a device is so esoteric, many people will think you just scraped by on a technicality.
I don't think the EFF has been hyping this enough. I can go through a day without talking to someone who has ever heard of the DMCA or the EFF. We are the beginning of a new generation, where we depend on the storage and transfer of digital information in our daily lives. It's our responsibility to make sure that this new frontier isn't locked down and commercialized before we have a chance to explore it. This is our generation and our responsibilty.
When you're standing in a pit of snakes, the moment you become complacent and careless is when they strike.
What the hell is Declan smoking? (Score:4, Interesting)
To highlight the absurdity of this position, consider this statement from the article:
The risk that a researcher could go to jail for giving a speech at an academic conference is essentially zero. - Orin Kerr
Wow, I fell so safe at night. Now, why does need to qualify zero with "essentially". Perhaps because, um, people have been arrested? Researchers have had injuctions against releasing their findings? Corporations have waved the DMCA around to frighten people into keeping quiet?
The purpose of an overly broad law is to pick and choose who you make examples of. Sure, the risk to us is relatively minor, because we're nobodies off their radar. Wait until you create something or discover something that rubs the government, software giants, or Hollywood cartels the wrong way. It doesn't matter if they lose in court, the point is they scared us all with heavy-handed legal tyranny.
Perhaps this is furthering his "law no, code yes" proposal. Overturning the DMCA is a lost cause, so we should push it on all fronts to weaken its reach. Like a bully, it's power comes from a shared belief in its potential to harm us. When we all stand up to it we will find it shrivel into something less ominous.
Wolf in Sheep's Clothing:This Isn't the First Time (Score:5, Interesting)
He is a friend of Declan, and he will do whatever it takes to advance his career, irrespective of how many people he harms in the process.
In the early days of LiViD (the first group to get a semi-working software DVD player under GNU/Linux) Declan McCullagh hung out on the livid mailing list. After he had a very good idea what was going on (work to create a DVD player under GNU/Linux) he published, in WiReD, a hysterical article about hackers writing software to enable rampant DVD piracy. The story was carried here on
As a result, several lead developers in the project were threatened with legal and criminal action (though no crime had been committed) and had to withdraw from the project. While others took over their responsibilities, this probably delayed the development of a working DVD player for GNU/Linux by a couple of months, and nearly wrecked the lives of several software volunteers.
Thanks to Declan, who never once admitted any wrongdoing (despite the flagrant yellow journalism that precipitated the problem, and likely led to the entire DeCSS fiasco as well), never once apologized, and remained quite arrogant during his entire tenure on the mailing list.
Later he passed himself off as a "friend" of freedom and an anti-DMCA activist/journalist. It gained him widespread popularity in some circles and some degree of recognition.
Now, clearly, he has determined that he can advance his carreer by toning down, perhaps even reversing, his stance on the DMCA. Hardly surprising, since, as a "journalist" he works for a publisher which is, almost by definition, a member of the very copyright cartel that is pushing the DMCA and similiar legislation.
Declan is a friend of Declan, the rest of us are tools to be used and discarded as needed to advance his own career.
Being stabbed in the back by such a person, given his history of behavior, should come as no surprise to anyone who has been paying attention.
Re:Lawrence Lessig (Score:5, Interesting)
True. A little bit of reading in legal history will uncover many examples where a law passed to change the existing legal opinion was limited by the existence of a body of precedent. (The examples I can think of off the top of my head are the law of privacy -- which has been incorporated into common law in every US state except for New York, where even the passage of a law defining a right to privacy has been limited by their court system; the other example is Canada's Bill of Rights, which their Supreme Court has held is limited by pre-existing common law.)
Unfortunately, there is little legal precedent to extend or limit DMCA. Neither the US Supreme Court nor any of the State courts have shown whether they embrace the corporist ideas of ``intellectual property" or Lessig's ideas of public domain.
> I believe their thinking is that they
> should grab as much land as they are allowed to grab, so that when the door swings back, maybe it will be left leaning
> a bit to their side.
As the saying goes, possession is nine-tenths of the law. Ask any landlord who forceably evicts a tenant 6 months behind in the rent.
Geoff
Re:U.S. Missing Advocate - Declan McCullagh (Score:2, Interesting)
This is incorrect. He, and a few others, said it would be a "stretch" and would almost assuredly be denied by the courts. Until a precedent has been set however the copyright cartels have show a willingness to let the mear fear of litigation do the work for them. The EFF wouldn't have examples to scream and yell about if the MPAA/RIAA were not letting fly with cease & desist letters backed up by their multi-million dollar retained legal counsil. Just because you would win in court doesn't mean you have the means to get to that point. In that sense the DMCA is most definitley a threat to academics in related fields.
Re:Is the EFF accidentally PART of the problem? (Score:4, Interesting)
Then there's also the fact that many non-technically oriented companies (et al) may not have legal departments that have much, if any, experience in the technical or copyright realms.
There is the large potential for the "Oh, it's that DMCA thing, I'd better give in" reaction.
Is that actually happening? I don't know. I'm just putting it forward as a possibility.
Yes, the DMCA is dangerous. But many are going off on it like it's the end of the world. Which it isn't. It's more likely one of the signs that the end may be coming.
Just because someone says that it's not as far reaching as some are making it out to be, that doesn't mean that they don't think it's reaching to far.
Declan knows better than this (Score:2, Interesting)
Yet, in the right hands, such a speech could be seen as a service that is primarily designed to circumvent copy-protection technology. Or, it could be seen as, not a crime in itself, but evidence that the researcher has been manufacturing or trafficking in prohibited devices. And researchers know this. And while they may realize it's highly unlikely they'll be arrested, the possibility still creates that wonderful chilling effect.
Two: The so-called "exceptions" for encryption research and reverse engineering are so narrow as to be worthless, as McCullagh has himself reported on in the past. And their very existence gives lie to the idea that the DMCA does _NOT_ prohibit such research, by the rule of "exceptio probat regulam in casibus non
exceptis" -- that is, you wouldn't NEED an exception if these activities weren't otherwise prohibited.
Three: The Justice Department's legal opinion in the Felten case was a masterpiece of legal footwork. In the main text of the opinion, they opined that Felten hadn't violated the DMCA. In the footnotes, they reserved the right to prosecute in the future. That shouldn't make anyone feel any warm-and-fuzzies about the DMCA.
Four: "Any type of publishing carries risks, including possible suits for libel, copyright infringement or invasion of privacy" -- I see your libel suit (typically limited to actual damages), Declan, and raise you 5 years in prison plus $50k of fines and statutory damages. That's per act (except that for second and subsequent offenses, the numbers double) -- and each sale of the proscribed material counts as an act. That's without adding on conspiracy charges. The DMCA risks are over and above those most publishers and writers face, by far.