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Hey Danny! > So I think that opponents of DMCA 1201 have mostly fallen back to advocating for stronger exceptions under the triennial copyright office review o

by schoen 5y ago

Hey Danny! > So I think that opponents of DMCA 1201 have mostly fallen back to advocating for stronger exceptions under the triennial copyright office review of the law, https://www.techdirt.com/tag/triennial-review/ https://www.techdirt.com/tag/triennial-review/ where individuals and companies can push for specific exceptions to the blanket ban. A sad thing about this strategy is that the triennial review exemptions are only allowed to exempt acts and not tools (that is, the Copyright Office can allow people to circumvent, but not allow people to publish software that helps other people circumvent). And then also that the exemptions don't autorenew, but rather expire after three years and have to be argued for again.

theandrewbailey 5y ago
> that is, the Copyright Office can allow people to circumvent, but not allow people to publish software that helps other people circumvent Publish source code in book form. https://en.wikipedia.org/wiki/Bernstein_v._United_States https://en.wikipedia.org/wiki/Bernstein_v._United_States https://en.wikipedia.org/wiki/Junger_v._Daley https://en.wikipedia.org/wiki/Junger_v._Daley
- dannyobrien 5y ago
  I know that you meant this more generally, rather than a direct response to Seth Schoen, but I'll just note that Seth is semi-famous for doing just that, with the DeCSS Haiku: https://en.wikipedia.org/wiki/DeCSS_haiku https://en.wikipedia.org/wiki/DeCSS_haiku While the Bernstein case is a great victory, there's also the 2600 case in the Second Circuit: https://supreme.findlaw.com/legal-commentary/why-2600-magazine-is-not-going-all-the-way-to-the-supreme-court-with-its-digital-music-copyright-act-challenge.html https://supreme.findlaw.com/legal-commentary/why-2600-magazi...
dannyobrien 5y ago
Hey Seth! It's true! In the 2000s (when Seth and I first started at EFF), the general feeling in the community was that the triennial review process was far too weak for permanent, effective change -- for the reasons given above, and more. There was serious consideration given to boycotting the process entirely. But as digital technology spread, and more of the world fell under 1201 (from garage openers to tractors), it became clear that we had to do everything -- from pushing for exceptions, to advocating for changes in the law, to litigation and challenging 1201's restrictions on speech under the first amendment. I hope I'm not sounding gloomy here -- there are still plenty of routes to reform 1201, but for now, direct repeal or revision of the language in the DMCA is going to be quickly overtaken by lobbyists trying to use it for even more pervasive digital copyright law, and to rewrite the intermediary liability/takedown language in the DMCA.
- car_analogy 5y ago
  > There was serious consideration given to boycotting the [triennial review process] entirely. But as digital technology spread, and more of the world fell under 1201 (from garage openers to tractors), it became clear that we had to do everything Are you sure this is the best strategy? The review process seems designed as a safety valve - ameliorating the worst short-term consequences of the law, to prevent the build-up of frustration, motivation, and technical means (e.g. businesses relying on an exemption) that might produce any meaningful change. It is the red cape keeping the bull distracted, while the matador slowly jabs the bull to death.
  - dannyobrien 5y ago
    I'm not sure at all, and this is the core of the debate. It's really a co-ordination problem: boycotting the triennial proceedings would require a unanimous action, in the face of increasing damage by 1201. So when I say "it became clear", it's not so much that the strategy was clearly better, but the calculation between a principled boycott and pragmatic involvement shifted.

by schoen 5y ago

theandrewbailey 5y ago

> that is, the Copyright Office can allow people to circumvent, but not allow people to publish software that helps other people circumvent Publish source code in book form. https://en.wikipedia.org/wiki/Bernstein_v._United_States https://en.wikipedia.org/wiki/Bernstein_v._United_States https://en.wikipedia.org/wiki/Junger_v._Daley https://en.wikipedia.org/wiki/Junger_v._Daley

dannyobrien 5y ago
I know that you meant this more generally, rather than a direct response to Seth Schoen, but I'll just note that Seth is semi-famous for doing just that, with the DeCSS Haiku: https://en.wikipedia.org/wiki/DeCSS_haiku https://en.wikipedia.org/wiki/DeCSS_haiku While the Bernstein case is a great victory, there's also the 2600 case in the Second Circuit: https://supreme.findlaw.com/legal-commentary/why-2600-magazine-is-not-going-all-the-way-to-the-supreme-court-with-its-digital-music-copyright-act-challenge.html https://supreme.findlaw.com/legal-commentary/why-2600-magazi...

dannyobrien 5y ago

Hey Seth! It's true! In the 2000s (when Seth and I first started at EFF), the general feeling in the community was that the triennial review process was far too weak for permanent, effective change -- for the reasons given above, and more. There was serious consideration given to boycotting the process entirely. But as digital technology spread, and more of the world fell under 1201 (from garage openers to tractors), it became clear that we had to do everything -- from pushing for exceptions, to advocating for changes in the law, to litigation and challenging 1201's restrictions on speech under the first amendment. I hope I'm not sounding gloomy here -- there are still plenty of routes to reform 1201, but for now, direct repeal or revision of the language in the DMCA is going to be quickly overtaken by lobbyists trying to use it for even more pervasive digital copyright law, and to rewrite the intermediary liability/takedown language in the DMCA.

car_analogy 5y ago
> There was serious consideration given to boycotting the [triennial review process] entirely. But as digital technology spread, and more of the world fell under 1201 (from garage openers to tractors), it became clear that we had to do everything Are you sure this is the best strategy? The review process seems designed as a safety valve - ameliorating the worst short-term consequences of the law, to prevent the build-up of frustration, motivation, and technical means (e.g. businesses relying on an exemption) that might produce any meaningful change. It is the red cape keeping the bull distracted, while the matador slowly jabs the bull to death.
- dannyobrien 5y ago
  I'm not sure at all, and this is the core of the debate. It's really a co-ordination problem: boycotting the triennial proceedings would require a unanimous action, in the face of increasing damage by 1201. So when I say "it became clear", it's not so much that the strategy was clearly better, but the calculation between a principled boycott and pragmatic involvement shifted.