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The primary purpose of content encryption tools is to trigger DMCA 1201 anti-circumention provisions to prohibit people from writing decryption tools. Nothing m

The primary purpose of content encryption tools is to trigger DMCA 1201 anti-circumention provisions to prohibit people from writing decryption tools. Nothing more and nothing less. All DRM schemes are a form of obfuscation; some particularly secure ones use hardware decoding enclaves not present on desktops that are harder to crack, but that's about it. The only practically useful DRM schemes are ones where any tool that could circumvent them would be so special-purpose as to be illegal. Here's how that works legally. DMCA 1201 actually comes in two parts: the first prohibits you from circumventing ANY technological measure (yes, even something as simple as a right-click blocker, domain lock, Youtube's rolling URL cipher, or what have you) and then lays out exceptions shaped similarly enough to fair use that the first part really doesn't alter the law beyond adding another tort to the pile. What's already infringement becomes infringement with a circumvention tort; and what's already fair use stays fair use. However, the second part is rather broad. It prohibits the marketing of any sort of tool whose sole purpose is circumvention, lacks non-circumvention uses, or is marketed for circumvention. In practice, this means that there's a dividing line between DRM that can be circumvented with standard tools and those that require domain specialists to write you a tool. You can circumvent YouTube's "rolling cipher" by just launching OBS. You can't circumvent DVD CSS with anything but a specialized tool that falls under the second part of DMCA 1201 and is thus illegal to provide - even for otherwise legal circumvention. (Yes, I know DVD CSS is laughably bad encryption; but the law doesn't care. You still have to write some code to brute force the laughably short ITAR-compliant key lengths.) If the CDM vendor themselves released their source code, I doubt that would be considered a circumvention tool per se. If they had also started telling people to pirate movies while they still can, then they are violating the law. However, the CDM vendor likely promises to their customers not to do so, possibly in contracts and definitely implied in their marketing material. Releasing source moves the DRM scheme from the "domain specialists only" side to the "10 minutes with developer tools" side.

ponderingfish 6y ago
Super answer!
shmerl 6y ago
So all this will become a pile of wasted effort once DMCA 1201 is repealed.
- kmeisthax 6y ago
  DMCA 1201 is a treaty implementation and thus cannot be repealed without significant international backlash.
  - shmerl 6y ago
    Treaties can't force unconstitutional garbage, especially when passed in a corrupt undemocratic fashion: https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-... DMCA 1201 should be repealed hard and never allowed back. Other countries will only thank US for being the first to dump it, even if it will anger DRM proponents who like to write such corrupt laws.
    - kmeisthax 6y ago
      There is a pending legal challenge to parts of DMCA 1201 being spearheaded by the EFF (Green v. DOJ) but I have no idea if it'll actually pass. I hope it does, as there is a legitimate conflict in law between free speech rights and DMCA 1201's restriction on circumvention tools. However, that doesn't mean they're automatically unconstitutional. It just means that strict scrutiny applies. That means it's constitutional if-and-only-if: 1. The restriction is necessary to a "compelling state interest"; 2. The restriction is "narrowly tailored" to achieving this compelling purpose; and 3. The restriction uses the "least restrictive means" to achieve the purpose. So, I can give you some spoilers: copyright is explicitly mentioned and authorized by the US Constitution, it even gets it's own separate clause. That means copyright is automatically a compelling state interest, and it follows that if we have code that enforces the law, we also have a compelling state interest in protecting that code, too. The EFF's case (and, more generally, any constitutional challenge to DMCA 1201) is going to hinge on the 2nd and 3rd questions of the strict scrutiny test - could they reach the same goal of automated copyright enforcement with a narrower, less restrictive law? Regarding your particular objections to treaty negotiation, the WIPO Copyright Treaty's undemocratic negotiation process is immaterial to constitutional questions. This is because the US Constitution is explicitly opposed to that. It says the President negotiates treaties and the Senate consents to them. It provides no provision for further democratic control in international relations. In other words, international law is inherently and constitutionally undemocratic. Think about what it means for that to NOT be the case: we'd need every treaty to have a corresponding election in which the citizens of both countries have an up-or-down vote. Very few treaties work this way; the EU sits comfortably at top-of-mind but that's about it.
raxxorrax 6y ago
Does the term marketing encompass open source software? Microsoft thinks so, but is that legally confirmed? It could be argued that DRM is an inconvenience or does the manufacturer determine that?
- kmeisthax 6y ago
  It's relative to the behavior of whoever is providing the software. So, if I make a page with an OBS download on it entitled "DOWNLOAD ALL MUSIC OFF YOUTUBE FOR FREE", then I'm violating DMCA 1201. But OBS itself isn't illegal - just my particular actions.
throw0101a 6y ago
> The primary purpose of content encryption tools is to trigger DMCA 1201 anti-circumention provisions to prohibit people from writing decryption tools. What if those tools are hosted outside of the US where the DMCA has to force? Certainly the US is a larger centre of gravity when it comes to tech, but it's not the only place.
- kmeisthax 6y ago
  DMCA 1201 is not an American law, it's just the American implementation of the anti-circumvention provisions of the WIPO Copyright Treaty. It exists in the EU (ISD Article 6), at the least. Given that the underlying treaty has 95 parties to it you're probably going to have to go deep into the third world to find a hospitable jurisdiction willing to host circumvention tools.
josephcsible 6y ago
> the first prohibits you from circumventing ANY technological measure (yes, even something as simple as a right-click blocker, domain lock, Youtube's rolling URL cipher, or what have you) The law does say it has to be "effective".
- bitwize 6y ago
  The law provides a definition of "effective" which has nothing to do with actual effectiveness in practice. To be effective protection under the DMCA, all that needs to happen is that it provides some restriction of access "in the normal course of its operation". Getting around these access restrictions may well be trivial -- but it's also a felony under federal law punishable by up to five years in prison!
- kmeisthax 6y ago
  "effective" means "having the effect of", not "is capable of doing".

ponderingfish 6y ago

Super answer!

shmerl 6y ago

So all this will become a pile of wasted effort once DMCA 1201 is repealed.

kmeisthax 6y ago
DMCA 1201 is a treaty implementation and thus cannot be repealed without significant international backlash.
- shmerl 6y ago
  Treaties can't force unconstitutional garbage, especially when passed in a corrupt undemocratic fashion: https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-... DMCA 1201 should be repealed hard and never allowed back. Other countries will only thank US for being the first to dump it, even if it will anger DRM proponents who like to write such corrupt laws.
  - kmeisthax 6y ago
    There is a pending legal challenge to parts of DMCA 1201 being spearheaded by the EFF (Green v. DOJ) but I have no idea if it'll actually pass. I hope it does, as there is a legitimate conflict in law between free speech rights and DMCA 1201's restriction on circumvention tools. However, that doesn't mean they're automatically unconstitutional. It just means that strict scrutiny applies. That means it's constitutional if-and-only-if: 1. The restriction is necessary to a "compelling state interest"; 2. The restriction is "narrowly tailored" to achieving this compelling purpose; and 3. The restriction uses the "least restrictive means" to achieve the purpose. So, I can give you some spoilers: copyright is explicitly mentioned and authorized by the US Constitution, it even gets it's own separate clause. That means copyright is automatically a compelling state interest, and it follows that if we have code that enforces the law, we also have a compelling state interest in protecting that code, too. The EFF's case (and, more generally, any constitutional challenge to DMCA 1201) is going to hinge on the 2nd and 3rd questions of the strict scrutiny test - could they reach the same goal of automated copyright enforcement with a narrower, less restrictive law? Regarding your particular objections to treaty negotiation, the WIPO Copyright Treaty's undemocratic negotiation process is immaterial to constitutional questions. This is because the US Constitution is explicitly opposed to that. It says the President negotiates treaties and the Senate consents to them. It provides no provision for further democratic control in international relations. In other words, international law is inherently and constitutionally undemocratic. Think about what it means for that to NOT be the case: we'd need every treaty to have a corresponding election in which the citizens of both countries have an up-or-down vote. Very few treaties work this way; the EU sits comfortably at top-of-mind but that's about it.

raxxorrax 6y ago

Does the term marketing encompass open source software? Microsoft thinks so, but is that legally confirmed? It could be argued that DRM is an inconvenience or does the manufacturer determine that?

kmeisthax 6y ago
It's relative to the behavior of whoever is providing the software. So, if I make a page with an OBS download on it entitled "DOWNLOAD ALL MUSIC OFF YOUTUBE FOR FREE", then I'm violating DMCA 1201. But OBS itself isn't illegal - just my particular actions.

throw0101a 6y ago

> The primary purpose of content encryption tools is to trigger DMCA 1201 anti-circumention provisions to prohibit people from writing decryption tools. What if those tools are hosted outside of the US where the DMCA has to force? Certainly the US is a larger centre of gravity when it comes to tech, but it's not the only place.

kmeisthax 6y ago
DMCA 1201 is not an American law, it's just the American implementation of the anti-circumvention provisions of the WIPO Copyright Treaty. It exists in the EU (ISD Article 6), at the least. Given that the underlying treaty has 95 parties to it you're probably going to have to go deep into the third world to find a hospitable jurisdiction willing to host circumvention tools.

josephcsible 6y ago

> the first prohibits you from circumventing ANY technological measure (yes, even something as simple as a right-click blocker, domain lock, Youtube's rolling URL cipher, or what have you) The law does say it has to be "effective".

bitwize 6y ago
The law provides a definition of "effective" which has nothing to do with actual effectiveness in practice. To be effective protection under the DMCA, all that needs to happen is that it provides some restriction of access "in the normal course of its operation". Getting around these access restrictions may well be trivial -- but it's also a felony under federal law punishable by up to five years in prison!
kmeisthax 6y ago
"effective" means "having the effect of", not "is capable of doing".