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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 wei

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.

R0b0t1 5y ago
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.
- schoen 5y ago
  There's no exception to the tools prohibition based on purpose. One of many harsh features of §1201.
  - R0b0t1 5y ago
    Nope, the law contradicts itself. In such a conflict it is typical to favor the consumer.
    - wtallis 5y ago
      Can you point out the contradicting bits?
      - R0b0t1 5y ago
        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 5y ago
        > 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.
        R0b0t1 5y ago
        Have you actually read the law you're discussing? It was in the first amendment to the DMCA, because they realized they can't prevent people from accessing things they paid for. Full text of 1201 here: https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201. Note the many exemptions. You could just call it encryption research. You also need to look at the list of exemptions granted by the library of congress, which is quite extensive: https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Anti-circumvention_exemptions https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A.... I can't actually find the thing I am looking for. AFAIR the Cornell law site does not have the updated version that I need to reference, but you can see by the exemptions granted they are just codifying your rights to continue to use a work, even if it is not necessarily obsolete, if the copy protection has gotten in your way. To actually change this rightsholders would have to lease works instead of selling them, but they still use the word "sell" when interacting with consumers.
- tsimionescu 5y ago
  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.
Aerroon 5y ago
>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 .
- na85 5y ago
  >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 5y ago
    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.
- caf 5y ago
  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.
- AnthonyMouse 5y ago
  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.

R0b0t1 5y ago

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.

schoen 5y ago
There's no exception to the tools prohibition based on purpose. One of many harsh features of §1201.
- R0b0t1 5y ago
  Nope, the law contradicts itself. In such a conflict it is typical to favor the consumer.
  - wtallis 5y ago
    Can you point out the contradicting bits?
    - R0b0t1 5y ago
      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 5y ago
        > 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.
        R0b0t1 5y ago
        Have you actually read the law you're discussing? It was in the first amendment to the DMCA, because they realized they can't prevent people from accessing things they paid for. Full text of 1201 here: https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201. Note the many exemptions. You could just call it encryption research. You also need to look at the list of exemptions granted by the library of congress, which is quite extensive: https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Anti-circumvention_exemptions https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_A.... I can't actually find the thing I am looking for. AFAIR the Cornell law site does not have the updated version that I need to reference, but you can see by the exemptions granted they are just codifying your rights to continue to use a work, even if it is not necessarily obsolete, if the copy protection has gotten in your way. To actually change this rightsholders would have to lease works instead of selling them, but they still use the word "sell" when interacting with consumers.
tsimionescu 5y ago
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.

Aerroon 5y ago

>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 .

na85 5y ago
>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 5y ago
  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.
caf 5y ago
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.
AnthonyMouse 5y ago
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.