EFF is suing the US government to invalidate the DMCA's DRM provisions


#1

Originally published at: http://boingboing.net/2016/07/21/eff-is-suing-the-us-government.html


#2

“No person shall be…deprived of property, without due process of law.”

I purchased your product at a store or online. I didn’t rent or license it, regardless of what the terms of use I didn’t read says. If I decline to agree to your “license,” you don’t come back and take it from me or pay me rent for keeping your property at my house. If I own it, that means I own my copy of your DRM scheme and can do what I want with it for personal use, including hack it, override it, disable it, dissect it, desecrate it, piss on it, and describe to others what I did to it using my 1st Amendment right to free speech. If you disagree, I want back rent for all the crap you’re storing at my house.


#3

Should I be free to put up a satellite dish and descramble pay tv signals without authorization? Is it okay to make copies of DVDs you borrow from the library? If I live near power lines, should it be okay for me to set a big coil in my yard that just happens to get energized by the alternating current in the overhead wires? Should I be allowed to give an account of an MLB game for which I only have implied verbal consent? Where do you draw the line?

What odds would you give for the EFF succeeding?


#4

Historic, inspiring work by the EFF and allies. So exciting.


#5

For satellite TV, I find the idea that watching it is theft to be absurd. I don’t have a choice about whether I’m being bombarded with those signals at all times, and they say it’s theft if I understand them? This isn’t about morality or theft, it’s about whether the business of providing satellite TV would work were it not for laws that prop it up. It’s about whether we think restrictions on our behaviour are worth it to allow the public good of satellite TV. I don’t have a strong opinion, I don’t think the laws necessary to support satellite TV need to be overly restrictive and I don’t think that having satellite TV is that great a good. I don’t think the laws as written are minimally restrictive, I think they are excessive (this is a rather uneducated opinion).

DVDs? I think the laws we have to protect them are too strong and I think people would be able to sell movies without them. Pirates buy more movies than non-pirates. People pay to support the creation of media they like.

MLB game? Yes, you can tell your friends what happened in the game last night. The point of these overreaching law sis that they’d like it if you couldn’t.


#6

What’s the difference between descrambling pay tv signals vs having a big copper coil under power lines?

Even if they fail?


#7

I don’t know enough about copper coils under power lines to say. Given that energy doesn’t tend to come from nowhere, I would guess that doing this would actually affect the current moving through the line. That is, you are actually stealing something since theft is depriving someone else of something. Someone with more electrical knowledge could clarify.

Satellite TV is not like that at all. Those beams coming down from space blanket the planet. If I set up a satellite I am only intercepting those beams that would have hit that particular spot anyway, so unless it’s casting a shadow over someone else’s satellite it isn’t stopping anyone else from using anything.


#8

You have a good understanding of electrical induction. You are indeed “taking” something.

Using that argument though, does it let companies like Spotify off the hook? Should they have to pay for licenses? If they were to just operate without paying anybody, is that ok because they haven’t really taken anything from anybody?


#9

In two places:

First: if you own a thing, you own it. You should be able to enjoy that thing however you want without being sued (as long as your use doesn’t cause actual harm to someone). So, if I own a DVD, I should be able to watch that DVD on an iPad, regardless of not having purchased a separate digital copy. I can understand not having been given a right to distribute the movie, but I should be able to watch it in whatever manner I see fit. This goes double if I have some sort of special needs which require an alternative manner of accessing the content (like a person with visual impairment having an eBook reader that reads the book aloud).

Second, the law should not criminalize normal behaviour. If, say, it’s common behaviour to bring a car to a non-dealer mechanic for service, the dealer should not be able to lock that mechanic out from performing the same kind of diagnostics on the car that the dealer can.

I would argue that your first three examples fail both tests — most people watching satellite TV are not pirating, and the descrambler-users haven’t paid for the service they’re stealing; most people borrowing DVDs from libraries are only watching once, and the people who do pirate media are also the people who usually buy the most media, so no harm done; a copper coil imposes costs on the rest of the system (which has to generate more power to compensate for that being impeded by the coil), and said coils are not exactly commonplace.

For your last example: if I was attending a game, and then come home, and excitedly describe as much of the game that I can remember to a family member, should that be illegal? I don’t think so, but if “accounts and descriptions of this game may not be disseminated without the express written consent of Major League Baseball,” then MLB might try to argue that you are harming them by doing so.


#10

I would say yes in this case. If they use flawed encryption, it’s their fault. You don’t control that their signal gets to your property.

Do you think you own a DVD that you borrow from the library? No? There’s your answer.

Are power lines your property? Are power lines covered by DRM? Do you know what the lawsuit is actually about?

Personally, I think that’s a 1st Amendment right, yes. The actions you’re factually describing are not copyrighted or copyrightable.

Read what the lawsuit is about. That’s a good place to start where the line is already drawn. The DRM provision doesn’t consider fair use, which it should. It takes an already acceptable practice like making a personal copy and makes that illegal solely because it’s wrapped in DRM, however weak and decryptable that DRM is.

Considering the lobbying power/campaign fund saturation of IP companies and the decrease of the focus on manufacturing products in the US economy, I don’t rate anyone too high on their chances of unraveling the corruption of law that is the current copyright system. But that doesn’t mean we shouldn’t continue fighting it.


#11

So it’s okay for the library to copy the DVD? They should just rip all their DVDs onto a server and make that accessible to their patrons. It would be like Netflix, except it’s run by local governments.


#12

I didn’t say that. The library could legally make backup copies. Format shifting is another issue and a longer debate. Personally I feel like format shifting from physical to digital media is fine, especially for backing up since no computer hardware or physical media lasts forever. But sharing digital copies with patrons would present a legal issue because you’re no longer loaning out a single copy at a time to a single patron. Some libraries do currently purchase licenses to “loan” digital copies of books and audiobooks to patrons.

I used to work for Netflix. There were customers who thought Netflix just printed their own DVDs and so they could just print another one and ship it out if there weren’t enough in stock. Netflix sometimes ordered special rental copies that were lower quality than retail copies, but they never printed their own. The online movies through Netflix were a whole other issue because of licensing issues. Purchased DVDs are rentable through the first sale doctrine. Anyone can set up a DVD rental service with their own DVD purchases.


#13

Well, again, to me the test is all about how we restrict rights and why. That’s the EFFs argument. Copyright is inherently a limit on free speech/expression, so it needs to be justified. I’m not sure that copyright as it exists right now is doing what it is supposed to do at all, but that’s a broader argument, and I’m willing to settle on the fact that right now, we have agreed on rules about who is allowed to broadcast what that is based on copyrights. If I want the right to play a recorded piece of music, I have to pay for that right. That’s a blatant restriction on my freedom in the service of profit for the people who recorded it. In theory is also serves society by allowing musicians to financially support themselves and keep making more music*. We are willing to restrict our freedom to keep getting music. I don’t see how the similar blatant first amendment violations of the DMCA are justified.

* Of course in societies where music is outlawed it continues to be made, so the idea that we have to create legal frameworks to have music made is absurd, but for the purposes of this discussion I’m not dismissing that there may be value in allowing copyright of music


#14

It’s generally a pretty annoying discussion practice to take someone’s responses and try to act as though they are supporting entirely different situations.

Permitting DRM to be broken for purposes of fair use (or use of one’s personal property, even) doesn’t get rid of the rest of copyright law, which would apply in most of the situations you’ve advanced.


#15

What do you mean? Esp. if they fail.


#16

Time to make another donation to EFF :slight_smile:


#17

Your analogies are flawed.


#18

Yes to descrambling satellite signals, they are transmitting them to you and have no say over what you do with the free copy they provide you.

No to the library DVD, you don’t own it. Yes if you bought it. Yes the library should be able to copy it for backup or to format shift, but should maintain one accessible version for each purchased copy. Grey area with stuff no longer purchasable and of public value, that should really become public domain anyway.

Yes to the power if it is over your property. Who are they to say what you do with the EMF they are creating on your property, if they don’t want you interacting with it they need to shield better or buy enough surrounding property that it doesn’t cross onto your property.

Sure you can give away just about any account you own, but that means you’ve transferred the rights to it, you should no longer access it.

Of course none of these analogies apply to this case so…


#19

Hurray, this is where REAL change can be affected, by changing the laws!!!
This I support as it is an informed effective action.

More of this EFF and less silly third party pacts for technology groups that aren’t legally enforceable and cannot superceed the law anyway.


#20

True. Although DRM is a technological means to enforcing a license agreement. Take away the DRM and there are still problematic licensing terms. MP3 files that I buy online do not allow me to sell the files after I’m done with them the same way that I could sell a CD. There’s no technical limitation, it’s purely a licensing limit. I think this suit is mostly about the legal framework around DRM, not DRM or harsh licensing terms in general.