[kmeisthax]

So, the thing about circumvention exceptions is that...

1. There is no general exception for format shifting. If there was, DMCA 1201 would have zero legal weight.

2. Even if there was, it would not materially impact the legal status of this DMCA 512 takedown request

This is because DMCA 1201 circumvention exceptions only apply to half of the law. Section 1201 renders two different acts illegal:

1. You can't circumvent DRM, unless for specific purposes.

2. You can't tell anyone how to circumvent DRM, regardless of purpose. This is the sort of violation being alleged here.

Depending on how you look at it, either Congress assumed a black market would exist for DRM circumvention technology anyway; or they assumed people who need lawful circumvention would in-house everything and destroy it when they no longer needed it. That's the sort of question a court might have to interpret if someone was a bit more careful than, say, publishing the DRM unlock straight onto GitHub. But that's not this case. In this case, the law does not facilitate any fair use argumentation whatsoever.

It's not a lie, the DMCA 1201 exception process is just hilariously toothless.

[Aerroon]

>2. You can't tell anyone how to circumvent DRM, regardless of purpose. This is the sort of violation being alleged here.

I'm curious: why would this be the case? This is a restriction of speech that doesn't contain copyrighted content enacted by a copyright law. This seems like charging someone, by using an anti-burglary law, because they taught someone else how to pick a lock .

[AnthonyMouse]

Just to give you an idea of how dumb this law is, try this for a hypothetical.

Alice uses DRM to protect her copyrighted work.

Bob uses the exact same DRM to stop you from copying public domain works, for example.

You publish some code to break Bob's DRM. Is that illegal?

The law shouldn't enable Bob to do that. But if you can have tools to break Bob's DRM, the tools will break Alice's DRM because they're the same, and then the law is pointless and might as well be repealed.

But if it's not legal to break Bob's DRM, then obviously the law is ridiculous and needs to be repealed, if it isn't already unconstitutional as a result.

We should not still have this.

[GuB-42]

I don't think that a law preventing you from breaking Bob's DRM just because it protects public domain is ridiculous. Public domain just means that nobody owns the rights, it is not an obligation for anyone who owns a copy to make it available to everyone.

For example, I can own a copy of Moby Dick and do everything in my power to make sure that you don't get my copy, and if you break into my house to read it, I can sue you for that, and I don't think "but I wanted to read a public domain book" is going to be well received. What I can't do is prevent you from getting your own copy of Moby Dick from someone more willing to share it, and then share it yourself.

[AnthonyMouse]

> I don't think that a law preventing you from breaking Bob's DRM just because it protects public domain is ridiculous. Public domain just means that nobody owns the rights, it is not an obligation for anyone who owns a copy to make it available to everyone.

That's not what's happening. Bob is making it available to everyone, and then trying to reassert a copyright on something that isn't.

Suppose Bob was the copyright owner, last year, before the work entered the public domain. He never distributed any copy without DRM, so no DRM-free copies exist. This is fine? Section 1201 of the DMCA was created to eliminate the public domain?

You're also missing the point. Stop trying to argue about the specifics of the thing Bob is doing and just choose anything you feel would be illegitimate. Preventing the use of third party toner cartridges, preventing farmers from repairing their tractors, take your pick. That's obviously not what the law was intended to do and it shouldn't be doing that.

But when Bob is using the same DRM as Alice, either you can publish tools to break it or you can't. If you can, the law is pointless. If you can't, the law is wrong.

[rdmond]

> Suppose Bob was the copyright owner, last year, before the work entered the public domain. He never distributed any copy without DRM, so no DRM-free copies exist. This is fine? Section 1201 of the DMCA was created to eliminate the public domain?

No law compels Bob to provide people with new copies once the work enters public domain (and remember, Bob's publication might contain separate works with their own copyrights like cover art or an introduction). Once it does, Bob can't stop you from distributing a version you created by buying a print copy and scanning it or taking screenshots of his DRM version and running them through OCR (as long as you don't include the cover art or introduction). If Bob's DRM was unique to this one book, there might be an argument that breaking it was the same (as long as there's no cover art and no introduction). Since Bob's DRM is likely used for other works not in the public domain, it's going to be hard to distinguish your breaking it for this PD work from the fact that you've broken it for lots of other in-copyright things.

[AnthonyMouse]

> No law compels Bob to provide people with new copies once the work enters public domain

The problem is not what the law requires Bob to do. The problem is what the law prohibits you from doing.

> Once it does, Bob can't stop you from distributing a version you created by buying a print copy and scanning it or taking screenshots of his DRM version and running them through OCR

"The law against breaking DRM isn't wrong but only because it is actually useless."

> Since Bob's DRM is likely used for other works not in the public domain, it's going to be hard to distinguish your breaking it for this PD work from the fact that you've broken it for lots of other in-copyright things.

That's the problem. The tools don't discriminate, so banning them goes too far and prohibits more than it is reasonable to.

[SSLy]

Public domain isn't copyleft.

[caf]

Yes, that is exactly what this is like, and if this was 1998 you could have joined us all in a rousing debate about the chilling implications of all this.

[na85]

>I'm curious: why would this be the case?

Because the DMCA, like most US law, is written by corporations without regard for the common folk.

The RIAA and MPAA literally don't give a shit what happens so long as they get to keep gouging the public with their antiquated business models.

They can't compete so they resort to litigation to protect their bottom line(s).

[ashtonkem]

To be fair, congress mostly doesn’t give a shit what happens either.

I’m genuinely curious if this aspect of the law would (or has) stand up to scrutiny, given that congress regularly writes unconstitutional laws, and the Supreme Court really really really hates prior restraint.

[anticensor]

> This seems like charging someone, by using an anti-burglary law, because they taught someone else how to pick a lock .

Hungary has such a law.

[R0b0t1]

You're not allowed to circumvent for format shifting, but you are allowed to circumvent to access a work you have rights to. So these takedowns on GitHub should not be happening.

[tsimionescu]

You are allowed to circumvent to access a work. No one is allowed to publish a method to do so (well, I believe the original copyright owner might be?).

So, most likely this GitHub takedown is perfectly legal.

[schoen]

There's no exception to the tools prohibition based on purpose. One of many harsh features of §1201.

[R0b0t1]

Nope, the law contradicts itself. In such a conflict it is typical to favor the consumer.

[wtallis]

Can you point out the contradicting bits?

[R0b0t1]

The law allows people to circumvent copy protection to access works they are entitled to access. There is also a provision against sharing copy protection breaking methods.

I never interpreted them as clashing, merely that I can't knowingly share copy breaking mechanisms with people who are unauthorized to use a work. If they do clash then you have to side with the consumer.

[wtallis]

> The law allows people to circumvent copy protection to access works they are entitled to access.

Claiming that such an allowance exists is not the same as actually identifying the statute or ruling that creates the allowance. What is your textual basis for claiming that there's a general permission for circumvention?

> If they do clash then you have to side with the consumer.

This sounds like you're referring to a concept that exists in contract law, but has no applicability to a question of how to handle a conflict between two provisions in law. In such a case, the courts will usually uphold whichever provision actually exists in the text of the law.