In 1998, Bill Clinton signed the Digital Millennium Copyright Act into law. At the time, most of the attention was on Section 512 - AKA “notice and takedown,” which absolves platforms from liability for users’ infringement provided they respond quickly to removal demands.
Over the years, this has been horrifically abused, with everyone from post-Soviet dictators to sexual predators to cults and literal Nazis using spurious copyright claims to censor their critics, often without consequence.
But the real ticking time-bomb in the DMCA is Section 1201, the “anti-circumvention” rule, which makes it a felony (punishing by a 5-year prison sentence and a $500k fine) to help people tamper with “access controls” that restrict copyrighted works.
This rule means that if a company designs its products so that you have to remove DRM to use them in legal ways, those uses become felonies. DMCA 1201 is how Apple and John Deere make it a felony for anyone except them to fix their products.
They just design their devices so that after the repair is complete, you need an unlock code to get the system to recognize new parts. Bypassing the unlock code defeats an “access control” and is thus a literal crime.
But there’s no copyright infringement here! Swapping a new part into a phone, a tractor or a ventilator is not a copyright infringement. And yet, it is still a (criminal) copyright VIOLATION. DMCA 1201 lets companies felonize ANY conduct that is adverse to their shareholders.
It’s “felony contempt of business model” and you can go to prison for it.
Thing is, it would be easy to fix this law. If you thought that DRM deserved its own legal protection, you could get there just by adding “this only applies when copyright infringement takes place.”
But from the very first days, it was clear that DMCA1201 was NOT about preventing copyright infringement, it was about enforcing business models. The first users of this law were DVD manufacturers who wanted to stop the public from “de-regionalizing” their DVD players.
The manufacturers and studios had cooked up a racket where they would sell DVDs at different prices in different countries, and they didn’t want Americans shopping for cheap DVDs in India.
But going into a store in Mumbai and paying the asking price for a licensed DVD and watching it in NYC is NOT infringement. It is how copyright is supposed to work: a rightsholder names a price, an audience member pays it, then they get to enjoy the work they’ve bought.
Likewise the early consoles that also took advantage of DMCA 1201. If you own a Sega Dreamcast and I write a game for your Sega Dreamcast and sell it to you, we are doing copyright right: a creator and an audience member exchanging creative works for money.
But Sega - and the App Store businesses it spawned up to and including Apple - used DMCA 1201 to make it a felony for creators to sell their works to audiences without cutting the device manufacturer in for a commission.
Now that everything has software in it, DMCA 1201 can be brought to bear on an ever-widening constellation of devices, from medical implants to kitchen appliances, from printer ink to insulin pumps.
My novella Unauthorized Bread is fiction, but the DRM abuses in it are deadass real:
https://arstechnica.com/gaming/2020/01/unauthorized-bread-a-near-future-tale-of-refugees-and-sinister-iot-appliances/
The metastasis of DRM is a gift to monopolists, who can corral customers, independent competitors and toolsmiths into arrangements of their design.
When the Napster Wars began, the RIAA represented the Big Six record labels. Today, it represents the Big THREE labels, as an entire realm of human endeavor stretching back to a time before language itself is now the near-exclusive purview of three giant corporations.
They are tightening the noose. Yesterday, the RIAA sent a DMCA 1201 takedown notice to Github demanding the removal of youtube-dl, a venerable and popular tool for format-shifting Youtube videos.
https://github.com/github/dmca/blob/master/2020/10/2020-10-23-RIAA.md
As Parker Higgins documents in a brilliant, scathing thread, the complaint is a masterwork of legal shenanigans, claiming that because someone COULD infringe an RIAA member’s copyright by saving a Youtube video, Github MUST remove tools that permit this.
https://twitter.com/xor/status/1319738279772770308
The RIAA’s lawyers don’t mention the millions of hours of public domain Youtube videos that archivists have preserved using youtube-dl, nor the Creative Commons licensed videos that are unambiguously lawful to download with youtube-dl.
Nor do they mentions the limitations to copyright that sometimes make it lawful to download ANY video from Youtube.
DMCA 1201 isn’t just a charter to transform your commercial desires into legal obligations, it is also a powerful censorship tool.
I started this essay talking about DMCA 512, the “notice and takedown” rule. That says that if you believe your copyright is being infringed, you can fire off a notice to the host and demand its immediate removal. If they comply, you can sue their user, but not them.
In 1998, Congress recognized that this was ripe for abuse, and created a “counternotice”: if your material is taken down and you think you are in the right, you can counternotify the host and they can put your stuff back up, again, without being liable if you’re wrong.
If the rightsholder complains again, the host either removes the content (the rightsholder and user can go to court), or they can leave it up if they think the complaint is BS. This system has been wildly inadequate at protecting legit speech, but it’s better than nothing.
And “nothing” is what you get under 1201. When the RIAA complains about youtube-dl to Github, Github pulls it down, but if the developers counternotify them, Github can’t restore the files without facing CRIMINAL liability (5 years/$500k).
Copyright trolls have long figured this out: DMCA 1201 is a superweapon for getting content removed from Google and elsewhere: if you assert that someone who recorded you doing something abusive is violating 1201, that video goes down and STAYS down, with no counternotice.
DMCA 1201 is a goddamned dumpster fire, a surefire recipe for techno-corporate dystopia. EFF is suing to overturn it. That trial can’t come fast enough:
https://www.eff.org/cases/green-v-us-department-justice
kianamaiart
janainaart
tangentwithtanner
jbbartram-illu
dailybridgerton
blakekathryn
titsay
kaledo-art
