6 ms·

The DMCA doesn't just let you request the takedown of copyrighted content. It lets you request the takedown of tools which can be used to "circumvent technologi

The DMCA doesn't just let you request the takedown of copyrighted content. It lets you request the takedown of tools which can be used to "circumvent technological restrictions" on accessing other, unrelated copyrighted content. So for instance, when the CSS encryption on DVDs was broken, there were DMCA takedown requests issued to sites hosting the deCSS decryption code, even though the copyright of that code itself wasn't at issue. ETA: a comment below corrects me, saying that the DMCA prohibits distribution of circumvention tools (i.e. makes it illegal and even criminal I think), but doesn't allow takedown notices for such tools: you have to actually sue them in court. So this takedown notice seems to have been incorrect even if the DMCA is invoked.

jrochkind1 9y ago
That could be, cite to the law or description of it? I'm interested in learning more. What I see in the law (https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512) is that a "notification of claimed infringement" must include "Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site." Github's own guidelines to DMCA takedown notices say "Identify the copyrighted work you believe has been infringed." https://help.github.com/articles/guide-to-submitting-a-dmca-takedown-notice/ https://help.github.com/articles/guide-to-submitting-a-dmca-... If the notice did not identify a work believed to have been infringed, then why did Github respond to it? Why don't they follow their own process? If the notice did identify a work being infringed, then they are probably wrong because you can't infringe a copyrighted work by listing a URL in a list. I guess actually getting damages might require proving they _knew_ that, and be generally infeasible/cost prohibitive. There are some problems with the DMCA regime.
- deleted 9y ago
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- jerf 9y ago
  Part of the challenge here is that "the DMCA" is a number of clauses. People who are "against the DMCA" often turn out to have an incoherent position, at least from a legal standpoint, when it turns out they just disagree with one of the contentious clauses. This would in fact be the most contentious clause, the one about being able to take down tools that enable circumvention, the one that is historically the one that perturbs techies and HN-types the most. I think what we see here isn't so much a DMCA takedown of a single line, but a single line modification in an attempt to prevent someone trying to take down the entire ad blocker, by making it so this particular person doesn't have any standing (in the legal sense) to make claims against the ad blockers anymore. The copyright takedown clause would be number two, but it has a mitigating factor; the DMCA copyright takedown process that you might see on a hosting site or HN itself [1] has a positive element as well, which is that by conforming to the DMCA a site like HN is able to host user content like our comments while discharging from themselves the responsibility of having to pre-filter every comment for copyrighted content. This clause has certainly been abused, and there is a justifiable case that the Feds have not been adequately aggressive about chasing them down, but on the net I still approve of this clause, personally. (You also have to distinguish between "the DMCA" and a site's policy, which may go above and beyond. Many or most of the things that people complain about for YouTube, for instance, are their own elaborations on the theme, not the legal requirements themselves. Not all of them, though; YouTube tends to favor the big media companies very strongly when it comes to defining "fair use". But things like taking away your monetization and giving it to somebody else is a YouTube policy, not the DMCA. Or at the very least, it's a penumbric emanation of the DMCA and not the DMCA itself.) Were I the developers or anyone with any ownership in this software, I would hesitate on putting too much stock in the idea that this was an improper use of the DMCA claim process. It was. But the reward for aggressively pushing back on that may be a proper lawsuit for violation of the anti-circumvention clauses, for which there is not a notification process but simply a legal basis for lawsuits granted, IIRC. Your reward for armchair-lawyering this DMCA takedown request could be a true lawsuit. [1]: https://news.ycombinator.com/dmca.html https://news.ycombinator.com/dmca.html - have a look at the footer of this page
  - jrochkind1 9y ago
    The DMCA does make distributing circumention measures illegal, but I can't find anything in the law, or discussions of it, saying that the takedown process applies to circumvention measures. The takedown process says an ISP like Github is not liable for copyright infringement if they respond to takedown notices, which is what creates the takedown process. It doesn't say anything about circumvention measures and liability with regard to notices though. What the DMCA says about circumvention measures: > (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— > (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; > (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or > (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. It seems obvious to me that Easylist is not such, I don't think it meets A, B, or C. But it'd be an expensive court process and who knows what the court would end up doing. In this example, it seems like Easylist has no desire to include that URL anyway, as it is not an ad server. It may be true that Github can decide to refuse to host the thing anyway, but it's not a DCMA takedown notice process. The whole situation is indeed a mess.
- deleted 9y ago
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JBSay 9y ago
An adblocker is not a tool which can be used to "circumvent technological restrictions" on accessing other, unrelated copyrighted content. It is a tool to restrict access to content.
- dane-pgp 9y ago
  At first glance you're right, but it's not hard to imagine an ad system which makes the text of a website invisible (or scrambled) until the advert has loaded, and imagine an ad blocker which is designed to do the unscrambling without rendering the ad. I don't know if that's the precise situation here, but if the ad blocker is intentionally carrying out a process like this to access the copyrighted work of the website without obeying the restrictions of the technological control process, then I could see that falling well within the bounds of the DMCA.
  - stordoff 9y ago
    AFAICT, the relevant provision of the DMCA here is "No person shall circumvent a technological measure that effectively controls access to a work protected under this title". Is there any elaboration on what "effectively controls access" means (e.g. in case law or in the statute that I missed)? Does a system that fails open (the only thing listed in the EasyList commit was the domain name, so a network error would replicate the same situation) fall within the scope of the provision?
    - mrsteveman1 9y ago
      > Is there any elaboration on what "effectively controls access" means Apple Inc. v. Psystar Corp.[1] involved circumvention of a system that "effectively controls access" to Mac OS X, preventing it from being installed on non-Apple hardware. Apple's anti-circumvention system is (in part) that some of the important system binaries are encrypted, the kernel transparently decrypts them when they are executed. The key isn't secret (in fact it's a constant that hasn't changed in 10+ years), but it is only distributed inside the SMC chip on the main board of a real Mac. There's no question that encryption is generally an effective access control method, it can't be circumvented without either having the key or breaking the encryption system in use. The court found that regardless of how trivial it was to obtain the key, the fact that it was encrypted made it "effective": > Psystar contends that Apple's anti-circumvention technology was ineffective because the decryption key for circumvention is publicly available on the internet. This argument fails. > "The fact that circumvention devices may be widely available does not mean that a technological measure is not, as the DMCA provides, effectively protecting the rights of copyright owners in the ordinary course of its operation." Sony Computer Entm't Am., Inc. v. Divineo, Inc., 457 F. Supp. 2d 957, 942 965 (N.D.Cal.2006). > Generally, measures based on encryption "effectively control" access to copyrighted works. Here, when the decryption key was not employed, the encryption effectively worked to prevent access to Mac OS X. And that is all that is required. > See Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 318 (S.D.N.Y.2000) (noting that when a decryption program was not employed, the encryption worked to control access to the protected work). > Accordingly, Psystar has violated the DMCA by circumventing Apple's protection barrier and trafficking devices designed for circumvention. Apple's motion for summary judgment on its DMCA claim must be granted.[4] [1] https://www.courtlistener.com/opinion/1557201/apple-inc-v-psystar-corp/ https://www.courtlistener.com/opinion/1557201/apple-inc-v-ps...

jrochkind1 9y ago

That could be, cite to the law or description of it? I'm interested in learning more. What I see in the law (https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512) is that a "notification of claimed infringement" must include "Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site." Github's own guidelines to DMCA takedown notices say "Identify the copyrighted work you believe has been infringed." https://help.github.com/articles/guide-to-submitting-a-dmca-takedown-notice/ https://help.github.com/articles/guide-to-submitting-a-dmca-... If the notice did not identify a work believed to have been infringed, then why did Github respond to it? Why don't they follow their own process? If the notice did identify a work being infringed, then they are probably wrong because you can't infringe a copyrighted work by listing a URL in a list. I guess actually getting damages might require proving they _knew_ that, and be generally infeasible/cost prohibitive. There are some problems with the DMCA regime.

deleted 9y ago
[deleted]
jerf 9y ago
Part of the challenge here is that "the DMCA" is a number of clauses. People who are "against the DMCA" often turn out to have an incoherent position, at least from a legal standpoint, when it turns out they just disagree with one of the contentious clauses. This would in fact be the most contentious clause, the one about being able to take down tools that enable circumvention, the one that is historically the one that perturbs techies and HN-types the most. I think what we see here isn't so much a DMCA takedown of a single line, but a single line modification in an attempt to prevent someone trying to take down the entire ad blocker, by making it so this particular person doesn't have any standing (in the legal sense) to make claims against the ad blockers anymore. The copyright takedown clause would be number two, but it has a mitigating factor; the DMCA copyright takedown process that you might see on a hosting site or HN itself [1] has a positive element as well, which is that by conforming to the DMCA a site like HN is able to host user content like our comments while discharging from themselves the responsibility of having to pre-filter every comment for copyrighted content. This clause has certainly been abused, and there is a justifiable case that the Feds have not been adequately aggressive about chasing them down, but on the net I still approve of this clause, personally. (You also have to distinguish between "the DMCA" and a site's policy, which may go above and beyond. Many or most of the things that people complain about for YouTube, for instance, are their own elaborations on the theme, not the legal requirements themselves. Not all of them, though; YouTube tends to favor the big media companies very strongly when it comes to defining "fair use". But things like taking away your monetization and giving it to somebody else is a YouTube policy, not the DMCA. Or at the very least, it's a penumbric emanation of the DMCA and not the DMCA itself.) Were I the developers or anyone with any ownership in this software, I would hesitate on putting too much stock in the idea that this was an improper use of the DMCA claim process. It was. But the reward for aggressively pushing back on that may be a proper lawsuit for violation of the anti-circumvention clauses, for which there is not a notification process but simply a legal basis for lawsuits granted, IIRC. Your reward for armchair-lawyering this DMCA takedown request could be a true lawsuit. [1]: https://news.ycombinator.com/dmca.html https://news.ycombinator.com/dmca.html - have a look at the footer of this page
- jrochkind1 9y ago
  The DMCA does make distributing circumention measures illegal, but I can't find anything in the law, or discussions of it, saying that the takedown process applies to circumvention measures. The takedown process says an ISP like Github is not liable for copyright infringement if they respond to takedown notices, which is what creates the takedown process. It doesn't say anything about circumvention measures and liability with regard to notices though. What the DMCA says about circumvention measures: > (2) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that— > (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; > (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or > (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. It seems obvious to me that Easylist is not such, I don't think it meets A, B, or C. But it'd be an expensive court process and who knows what the court would end up doing. In this example, it seems like Easylist has no desire to include that URL anyway, as it is not an ad server. It may be true that Github can decide to refuse to host the thing anyway, but it's not a DCMA takedown notice process. The whole situation is indeed a mess.
deleted 9y ago
[deleted]

JBSay 9y ago

An adblocker is not a tool which can be used to "circumvent technological restrictions" on accessing other, unrelated copyrighted content. It is a tool to restrict access to content.

dane-pgp 9y ago
At first glance you're right, but it's not hard to imagine an ad system which makes the text of a website invisible (or scrambled) until the advert has loaded, and imagine an ad blocker which is designed to do the unscrambling without rendering the ad. I don't know if that's the precise situation here, but if the ad blocker is intentionally carrying out a process like this to access the copyrighted work of the website without obeying the restrictions of the technological control process, then I could see that falling well within the bounds of the DMCA.
- stordoff 9y ago
  AFAICT, the relevant provision of the DMCA here is "No person shall circumvent a technological measure that effectively controls access to a work protected under this title". Is there any elaboration on what "effectively controls access" means (e.g. in case law or in the statute that I missed)? Does a system that fails open (the only thing listed in the EasyList commit was the domain name, so a network error would replicate the same situation) fall within the scope of the provision?
  - mrsteveman1 9y ago
    > Is there any elaboration on what "effectively controls access" means Apple Inc. v. Psystar Corp.[1] involved circumvention of a system that "effectively controls access" to Mac OS X, preventing it from being installed on non-Apple hardware. Apple's anti-circumvention system is (in part) that some of the important system binaries are encrypted, the kernel transparently decrypts them when they are executed. The key isn't secret (in fact it's a constant that hasn't changed in 10+ years), but it is only distributed inside the SMC chip on the main board of a real Mac. There's no question that encryption is generally an effective access control method, it can't be circumvented without either having the key or breaking the encryption system in use. The court found that regardless of how trivial it was to obtain the key, the fact that it was encrypted made it "effective": > Psystar contends that Apple's anti-circumvention technology was ineffective because the decryption key for circumvention is publicly available on the internet. This argument fails. > "The fact that circumvention devices may be widely available does not mean that a technological measure is not, as the DMCA provides, effectively protecting the rights of copyright owners in the ordinary course of its operation." Sony Computer Entm't Am., Inc. v. Divineo, Inc., 457 F. Supp. 2d 957, 942 965 (N.D.Cal.2006). > Generally, measures based on encryption "effectively control" access to copyrighted works. Here, when the decryption key was not employed, the encryption effectively worked to prevent access to Mac OS X. And that is all that is required. > See Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 318 (S.D.N.Y.2000) (noting that when a decryption program was not employed, the encryption worked to control access to the protected work). > Accordingly, Psystar has violated the DMCA by circumventing Apple's protection barrier and trafficking devices designed for circumvention. Apple's motion for summary judgment on its DMCA claim must be granted.[4] [1] https://www.courtlistener.com/opinion/1557201/apple-inc-v-psystar-corp/ https://www.courtlistener.com/opinion/1557201/apple-inc-v-ps...