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Why is it that the tech set always forgets that CS pedantry != legal pedantry? Have we forgotten about intent? You can't just change the line to a regex that /j

Why is it that the tech set always forgets that CS pedantry != legal pedantry? Have we forgotten about intent? You can't just change the line to a regex that /just happens/ to match that URL and go "neener neener neener it's not the same!" Are you willing to argue in court that that line was changed and it /just so happened/ to match the domain from before? Do you have a plausible explanation for why that change would've been made that doesn't involve "well, we were trying to creatively skirt a DMCA takedown request"?

stale2002 9y ago
Well, first of all, blocking a URL is not against the DMCA. So one argument to do is this is because it is NOT illegal, and the purpose would be to stop frivolous lawsuits. So yes, it would be trying to creatively skirt frivolous lawsuits. Another legit reason though, is obfuscation. The company that tried to threaten this frivolous lawsuit may have not even noticed, if it was some weird regex. And they'd either not complain, or have to spend a bunch of money tracking down the problem. Both are wins, in my book.
- smitherfield 9y ago
  >Well, first of all, blocking a URL is not against the DMCA. But you'd significantly help the legal case of those claiming it is by trying to obfuscate that you're doing so; they would argue in court it's an implicit admission you "knew it was illegal."
  - khedoros1 9y ago
    > they would argue in court it's an implicit admission you "knew it was illegal." So you'd argue in reply that although you maintain that it's legal, you knew that it'd likely be something that bad actors would file frivolous suit over. Even when you win, being hauled into court is incredibly disruptive.
- kelnos 9y ago
  Blocking a URL is, in and of itself, not illegal, sure. Blocking a URL that allows you to break a copyright-protection mechanism[1,2]? Well, that's not so clear. It's also unclear whether or not Admiral falls under the umbrella of a copyright-protection mechanism. I really really really want EasyList to be in the right here, and be able to re-add the block without fear, but it's far from clear what all the implications of this are. I'm glad the EFF has stepped in to help them out; I'm content to wait for their opinion (or the opinion of an actual lawyer versed in the subject at hand) on this. In the end, this is just another example of why the DMCA needs to go. [1] Yes, you could say that this is bad design that the mechanism can be broken so easily, but that's not the point: the DMCA doesn't care how good or bad the mechanism is. If you break it, you're in violation. [2] I suppose there's another point to be made: DMCA takedown notices are only for removing content or links to content that contain actual material where copyright has been infringed, not for removing circumvention tools.
  - gasof 9y ago
    Do you think adblocking is the same as removing DRM? How do adblockers technically relate to copyright infringement? I don't see any adblocker do anything about DRM. If there is an adblocker that allows me to download lossless video from Netflix I'd sure like to hear about it. Are you perhaps saying that the ads played on Spotify and YouTube are a form of DRM? Or does every TOS violation constitute a DRM violation now? How is "blocking ads" in any way related to copyright and DRM?
  - mirimir 9y ago
    > I really really really want EasyList to be in the right here Well, they're obviously in the right :) > and be able to re-add the block without fear They could fix that by improving their OPSEC. So as to not be so easily threatened.
jxramos 9y ago
I'm not sure if its a matter of forgetting but about not knowing the contours of the boundaries of what's permissible and seeing a straightforward workaround as a proposition which also serves to give feedback regarding why or why not the proposition would be tenable. Evaluating a concrete technical solution in light of some legal matter should do well to illuminate and draw attention to the crux of the problem. I guess the bottom line is whether one is forced to blacklist/whitelist a site and what means are permissible. If its simply about the site name appearing literally then a workaround would seem easy enough and one couldn't claim uniquely singling out because the filter applies more broadly. Of course the intent is the same in both, but I'm not versed enough on DCMA issues to know how intent plays a role in this field. Your point actually makes me curious about the legal field more generally and just how pervasive intent is and what areas of law it plays a role and which is does not.
- kelnos 9y ago
  It's not specifically about the DMCA; it's about legal issues in general. Intent matters in the vast majority of law. You'd be hard-pressed to argue in front of a judge that your intent wasn't to block this specific site, based on the sequence of events: 1. Site added to block list. 2. Site removed from block list due to DMCA takedown request. 3. Site block by new rule added that doesn't target it directly. I can't imagine any judge or jury looking at that sequence events and then taking you seriously when you say "I didn't intend to block the original site". The parent's point was more along the lines of: people in the tech world need to stop looking for technical solutions to all problems. Some problems are social problems, or legal problems. They should be solved directly, not with awkward (or possibly illegal or at least tort-worthy) workarounds. We talk about chilling effects and corporations engaging in anti-social behavior when they threaten open source and the open web in particular, but attacking social/legal problems with technological workarounds is itself also anti-social. Not saying that technological solutions are not useful sometimes. In the short-term, you can often make a bad social or legal problem less bad by using a tech workaround, while simultaneously taking the long slog toward fixing the root of the problem. But putting tech band-aids over our problems and then walking away will only hurt us in the long run.
jfoutz 9y ago
The claim is about copyrighted material thus DMCA, right? the only reason that string appears is for matching. The intent is for identification, not stealing someone else's copyrighted material. If there's a better way to match than comparing to a literal copy then we should do that. Ideally, one regex that matches all offending domains and no others.
- ascorbic 9y ago
  They're not claiming copyright on the domain name. They're saying that by blocking it, they're violating the anti-circumvention clauses of the DMCA.
  - AnthonyMouse 9y ago
    Since when does the anti-circumvention section of the DMCA have anything to do with the notice-and-takedown section of the DMCA?
    - ascorbic 9y ago
      It doesn't, legally. It does in this case though, because GitHub says to use the same mechanism for takedowns and anti-circumvention requests.
    - codedokode 9y ago
      Does it really matter? If they cannot send takedown notice they still are allowed to sue Github so Github might want to remove the offending code rather than enter a legal battle with unclear consequences. The admiral website has a copy of a notice [1] if you are interested. [1] https://blog.getadmiral.com/dmca-easylist-adblock-copyright-access-control-admiral-10-things-to-know/ https://blog.getadmiral.com/dmca-easylist-adblock-copyright-...
  - jfoutz 9y ago
    Oh, that's way more interesting. So they have standing? I can see the argument that altering the execution of the program sent to the users computer is a DMCA violation (i vehemently disagree, but i can see it). But i don't think they didn't actually wrote the page that's delivered to the user.
criddell 9y ago
How about using ROT13 encryption for the list and then go after them if they circumvent your content protection scheme.
- dane-pgp 9y ago
  That's a funny thought, but the company making the complaint could probably prove that the ad blocker was interfering with their ads even without looking at the source code. Moreover, the DMCA covers unauthorised access to copyrighted content, and the ad blocker cannot claim ownership of the ROT13'ed domain name, just as the domain name itself is not copyrightable. In theory the ad blocker could use a more complicated scheme to obfuscate their source code, but I'm not sure whether they could combine a "do not de-obfuscate this code" rule with an open source / Free Software license.
  - alphapapa 9y ago
    This is a crucial point: the software is not blocking their ads, neither are the software's authors--the users of the software are. And the users have every right to not connect their computers to any other computer they please. It's interesting to compare this to Second Amendment arguments. Do ad blockers block ads, or do users? Do users have a right to keep and bear ad blockers? Of course it's silly, and ad blockers are passive tools, but there are some striking parallels.
gcb0 9y ago
so use legal pedantry? instead of blocking requests, replace the domain name with something funnily invalid, with a play on words on each original domain. then in case of any dmca, claim satire fair use. it would make patchs review much more fun too!
alphapapa 9y ago
Not looking up a domain name cannot constitute circumvention. Imagine a DVDCSS-like system that used remote servers to convey permission and defaulted to ALLOW. Would users who unplugged their DVD players from the Internet be guilty of circumvention? Now imagine that DVDs for said player were handed out freely on the street, stuffed into people's mailboxes, etc. Would people who played those DVDs without connecting their players to the Internet be guilty of circumvention? That's the same thing, in principle, that's going on here. Claiming that it's circumvention (whoever makes that claim; I don't know if you are) is preposterous. This is obviously an abuse of the DMCA (not hard to do, considering the DMCA itself is an abuse, but I digress).

stale2002 9y ago

Well, first of all, blocking a URL is not against the DMCA. So one argument to do is this is because it is NOT illegal, and the purpose would be to stop frivolous lawsuits. So yes, it would be trying to creatively skirt frivolous lawsuits. Another legit reason though, is obfuscation. The company that tried to threaten this frivolous lawsuit may have not even noticed, if it was some weird regex. And they'd either not complain, or have to spend a bunch of money tracking down the problem. Both are wins, in my book.

smitherfield 9y ago
>Well, first of all, blocking a URL is not against the DMCA. But you'd significantly help the legal case of those claiming it is by trying to obfuscate that you're doing so; they would argue in court it's an implicit admission you "knew it was illegal."
- khedoros1 9y ago
  > they would argue in court it's an implicit admission you "knew it was illegal." So you'd argue in reply that although you maintain that it's legal, you knew that it'd likely be something that bad actors would file frivolous suit over. Even when you win, being hauled into court is incredibly disruptive.
kelnos 9y ago
Blocking a URL is, in and of itself, not illegal, sure. Blocking a URL that allows you to break a copyright-protection mechanism[1,2]? Well, that's not so clear. It's also unclear whether or not Admiral falls under the umbrella of a copyright-protection mechanism. I really really really want EasyList to be in the right here, and be able to re-add the block without fear, but it's far from clear what all the implications of this are. I'm glad the EFF has stepped in to help them out; I'm content to wait for their opinion (or the opinion of an actual lawyer versed in the subject at hand) on this. In the end, this is just another example of why the DMCA needs to go. [1] Yes, you could say that this is bad design that the mechanism can be broken so easily, but that's not the point: the DMCA doesn't care how good or bad the mechanism is. If you break it, you're in violation. [2] I suppose there's another point to be made: DMCA takedown notices are only for removing content or links to content that contain actual material where copyright has been infringed, not for removing circumvention tools.
- gasof 9y ago
  Do you think adblocking is the same as removing DRM? How do adblockers technically relate to copyright infringement? I don't see any adblocker do anything about DRM. If there is an adblocker that allows me to download lossless video from Netflix I'd sure like to hear about it. Are you perhaps saying that the ads played on Spotify and YouTube are a form of DRM? Or does every TOS violation constitute a DRM violation now? How is "blocking ads" in any way related to copyright and DRM?
- mirimir 9y ago
  > I really really really want EasyList to be in the right here Well, they're obviously in the right :) > and be able to re-add the block without fear They could fix that by improving their OPSEC. So as to not be so easily threatened.

jxramos 9y ago

I'm not sure if its a matter of forgetting but about not knowing the contours of the boundaries of what's permissible and seeing a straightforward workaround as a proposition which also serves to give feedback regarding why or why not the proposition would be tenable. Evaluating a concrete technical solution in light of some legal matter should do well to illuminate and draw attention to the crux of the problem. I guess the bottom line is whether one is forced to blacklist/whitelist a site and what means are permissible. If its simply about the site name appearing literally then a workaround would seem easy enough and one couldn't claim uniquely singling out because the filter applies more broadly. Of course the intent is the same in both, but I'm not versed enough on DCMA issues to know how intent plays a role in this field. Your point actually makes me curious about the legal field more generally and just how pervasive intent is and what areas of law it plays a role and which is does not.

kelnos 9y ago
It's not specifically about the DMCA; it's about legal issues in general. Intent matters in the vast majority of law. You'd be hard-pressed to argue in front of a judge that your intent wasn't to block this specific site, based on the sequence of events: 1. Site added to block list. 2. Site removed from block list due to DMCA takedown request. 3. Site block by new rule added that doesn't target it directly. I can't imagine any judge or jury looking at that sequence events and then taking you seriously when you say "I didn't intend to block the original site". The parent's point was more along the lines of: people in the tech world need to stop looking for technical solutions to all problems. Some problems are social problems, or legal problems. They should be solved directly, not with awkward (or possibly illegal or at least tort-worthy) workarounds. We talk about chilling effects and corporations engaging in anti-social behavior when they threaten open source and the open web in particular, but attacking social/legal problems with technological workarounds is itself also anti-social. Not saying that technological solutions are not useful sometimes. In the short-term, you can often make a bad social or legal problem less bad by using a tech workaround, while simultaneously taking the long slog toward fixing the root of the problem. But putting tech band-aids over our problems and then walking away will only hurt us in the long run.

jfoutz 9y ago

The claim is about copyrighted material thus DMCA, right? the only reason that string appears is for matching. The intent is for identification, not stealing someone else's copyrighted material. If there's a better way to match than comparing to a literal copy then we should do that. Ideally, one regex that matches all offending domains and no others.

ascorbic 9y ago
They're not claiming copyright on the domain name. They're saying that by blocking it, they're violating the anti-circumvention clauses of the DMCA.
- AnthonyMouse 9y ago
  Since when does the anti-circumvention section of the DMCA have anything to do with the notice-and-takedown section of the DMCA?
  - ascorbic 9y ago
    It doesn't, legally. It does in this case though, because GitHub says to use the same mechanism for takedowns and anti-circumvention requests.
  - codedokode 9y ago
    Does it really matter? If they cannot send takedown notice they still are allowed to sue Github so Github might want to remove the offending code rather than enter a legal battle with unclear consequences. The admiral website has a copy of a notice [1] if you are interested. [1] https://blog.getadmiral.com/dmca-easylist-adblock-copyright-access-control-admiral-10-things-to-know/ https://blog.getadmiral.com/dmca-easylist-adblock-copyright-...
- jfoutz 9y ago
  Oh, that's way more interesting. So they have standing? I can see the argument that altering the execution of the program sent to the users computer is a DMCA violation (i vehemently disagree, but i can see it). But i don't think they didn't actually wrote the page that's delivered to the user.

criddell 9y ago

How about using ROT13 encryption for the list and then go after them if they circumvent your content protection scheme.

dane-pgp 9y ago
That's a funny thought, but the company making the complaint could probably prove that the ad blocker was interfering with their ads even without looking at the source code. Moreover, the DMCA covers unauthorised access to copyrighted content, and the ad blocker cannot claim ownership of the ROT13'ed domain name, just as the domain name itself is not copyrightable. In theory the ad blocker could use a more complicated scheme to obfuscate their source code, but I'm not sure whether they could combine a "do not de-obfuscate this code" rule with an open source / Free Software license.
- alphapapa 9y ago
  This is a crucial point: the software is not blocking their ads, neither are the software's authors--the users of the software are. And the users have every right to not connect their computers to any other computer they please. It's interesting to compare this to Second Amendment arguments. Do ad blockers block ads, or do users? Do users have a right to keep and bear ad blockers? Of course it's silly, and ad blockers are passive tools, but there are some striking parallels.

gcb0 9y ago

so use legal pedantry? instead of blocking requests, replace the domain name with something funnily invalid, with a play on words on each original domain. then in case of any dmca, claim satire fair use. it would make patchs review much more fun too!

alphapapa 9y ago

Not looking up a domain name cannot constitute circumvention. Imagine a DVDCSS-like system that used remote servers to convey permission and defaulted to ALLOW. Would users who unplugged their DVD players from the Internet be guilty of circumvention? Now imagine that DVDs for said player were handed out freely on the street, stuffed into people's mailboxes, etc. Would people who played those DVDs without connecting their players to the Internet be guilty of circumvention? That's the same thing, in principle, that's going on here. Claiming that it's circumvention (whoever makes that claim; I don't know if you are) is preposterous. This is obviously an abuse of the DMCA (not hard to do, considering the DMCA itself is an abuse, but I digress).