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If our lawmakers actually cared about us, the DMCA would have a clause to the effect of "if bypassing an effective technological protection measure is necessary
by josephcsible 4y ago
If our lawmakers actually cared about us, the DMCA would have a clause to the effect of "if bypassing an effective technological protection measure is necessary for anyone to exercise any of their fair use rights, then the means to do so may be freely created and distributed notwithstanding anything else in this law."
- greyface- 4y agoAlso, there would be penalties for filing false or invalid DMCA claims.
- jkaplowitz 4y agoThese do exist, actually, for people who knowingly mispresent that material or activity is infringing - Section 512(f). https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 (search for "(f)" a couple of times) It has been a very weak penalty in practice without much enforcement, but there are some examples of it being used: https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold,_Inc https://en.wikipedia.org/wiki/Online_Policy_Group_v._Diebold.... (successfully, but with low enough damages that it was mainly a moral victory and not really a disincentive for anything) https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp. (rather less successfully, but not only was the work allowed to stay online, the case did confirm that copyright holders must at least give subjectively good-faith consideration to the idea that material or activity may be fair use before sending a notice of infringement. this does not necessarily require a proper legally reasonable weighing of the statutory fair use factors, just subjectively good-faith consideration.)
- bombcar 4y agoThe problem with many of these is that people don't actually file a valid DMCA claim, but the hosting provider takes down things anyway. You need to have legal vet everything and fight them all if you want to be effective, but most have gone the YouTube method of doing their own thing.
- Sebguer 4y agoThe bar for a valid DMCA claim is very low. While it's definitely the case that frivolous, non-valid DMCAs get taken at face value and treated as valid by some companies, fixing this wouldn't fix the underlying problem since filing spurious valid DMCAs has almost no real punishment, since no one has been willing to actually litigate to punish people doing it.
- Nextgrid 4y agoWhich is ultimately caused by the "attention economy" and that most providers don't get paid by their end-users but instead by advertisers. The service of let's say YouTube is not to provide a place for end-users to upload videos but to provide advertisers with a way to put their spam in front of eyeballs - the content that end-users upload is merely a necessary evil they'd gladly get rid of if they could find some other way of driving traffic to the spam. Even in a perfect world where the DMCA is "balanced" and any abuses are properly punished, this problem wouldn't go away - the platforms will merely provide alternative means for advertisers (and anyone else who's happy to pay) - their real customers - to take down whatever content they want. It will merely become a bullet point in their list of features that they offer to paid customers, completely independent of the DMCA (and thus wouldn't be subject to whatever the DMCA says).
- schoen 4y agoThe grandparent post is talking about §1201, whereas you're talking about §512 (I haven't checked which one Nintendo used, although "DMCA takedown" normally refers to §512).
- zerocrates 4y agoThe project they apparently had Github take down was something that dumps keys from Switches, so it would be 1201, anti-circumvention.
- jkaplowitz 4y agoAh, you're right indeed. (As of course you, specifically, would be on this topic.) My mistake. Unfortunately I can no longer edit my previous comment to correct it.
- schoen 4y agoIt is confusing, because some organizations have sometimes improperly sent §512 takedown notices alleging §1201 violations (which isn't contemplated by the text of §512, which requires an allegation of direct copyright infringement). I don't remember if there are any court decisions addressing this practice. (I also don't know what theories hosting providers use or don't use to argue that they don't have §1201 liability for things that their customers post...)
- sitkack 4y agoThe lawyers that file the invalid claims should get disbarred.
- sam0x17 4y agoYeah, imo 3 false reports and the work goes into the public domain. I'd fight for that
- viraptor 4y agoI like the idea, but I think that would flip the table where people start sending fake DMCA takedowns for work they want in public domain.
- greyface- 4y agoThis would be an issue if the 3rd takedown immediately triggered an un-copyrighting event, but it could be done in other ways. E.g.: "It shall be a defense to a claim of copyright infringement that an author of the claimed work has sent 3 or more invalid DMCA notices in the past"
- ekianjo 4y agoConfirm who sends the DMCA then.
- NoMoreNicksLeft 4y agoIf they cared about us, inclusion of DRM into any product would exempt it from qualification for copyright protection. Basically, you should be allowed to have copyright, or DRM, but never both. And you can't change your mind on it either... if the hardware is released with DRM, you don't get to release a non-DRM version because you realized you fucked up. If it's extant anywhere in the world, copyright's forever out of reach.
- Dalewyn 4y agoTrademarks and to a lesser extent copyrights are contingent on the rights holders defending their properties and rights. Courts have invalidated trademarks and copyrights due to insufficient defensive actions from their rights holders. DRM is just one of many methods that a rights holder can defend their properties and rights with. This isn't to say DRM is acceptable; most examples aren't. But it is legally incompatible to argue that a rights holder can have trademarks/copyrights but should not defend them. Obligatory IANAL.
- boolemancer 4y agoThis may be true of trademarks, but I've never heard of any requirement to defend copyrights, nor have I heard of any courts invalidating copyrights because of a lack of defending them.
- NoMoreNicksLeft 4y agoIn the interests of treaty harmonization, courts have even gone so far as to reinstate expired copyrights. They've stolen from the public domain, and given those works back to corporations who didn't even have anything to do with creating them in the first place.
- vkou 4y agoThat's like saying that putting locks on your house should exempt you from suing someone for stealing from you. Look, there's a lot of problems with how both of these things work today, but that seems entirely nonsensical to me.
- kevin_thibedeau 4y agoReverse engineering is already a protected activity. So long as you don't distribute a DRM circumvention device or copyrighted content you're in the clear.
- gjsman-1000 4y agoBe wary of EULAs though. Even though it hasn’t reached SCOTUS yet, some circuit courts have ruled that if the EULA says “no reverse-engineering,” it is actually a violation of contract to try to reverse-engineer the software. Reverse-engineering the hardware is OK because of First Sale Doctrine, but software is licensed (not sold) and the license terms can ban it in some circumstances. Edit: When you click “I agree,” you have signed a contract according to US Courts. If you somehow use the software without accepting the EULA, you have no license, which is automatic copyright infringement. Unless expressly stated, software is not “sold” in the US, ever. https://en.m.wikipedia.org/wiki/Clickwrap#Legal_consequences_in_the_United_States https://en.m.wikipedia.org/wiki/Clickwrap#Legal_consequences...
- teddyh 4y ago> software is licensed (not sold) What does that mean? Say that I have, in my hand, a copy of some software. I bought it at a store, for money. I did not sign anything (or even give my name). What law obliges me to follow the EULA? It can’t be contract law, since I did not sign anything. It can’t be copyright law, since I’m not making a copy of the software (or making a public performance, etc.). So what is it?
- mrpippy 4y agoSome kind of “by opening this software you agree to the license terms contained within” notice was pretty common on the bag of floppies or on a sticker on the jewel case, etc. And of course, the EULA would be part of the setup process.
- teddyh 4y ago> the EULA would be part of the setup process. I won’t necessarily agree to (or even see that display of) a EULA if all I do is reverse engineer the software.
- CyberRabbi 4y agoWhat are "fair use rights" in this context? Fair use specifically concerns creating derivative works. You don't by default have a right to use Nintendo's IP however you like, no matter how virtuous or benign you think your use is. You are only licensed to use their products in the ways that they permit.
- EMIRELADERO 4y agoFair use (specifically the American variant) is a constitutional and statutory doctrine that balances the rights of the copyright holder and society's. It's decided by 4 factors, weighed "holistically" and individually. Ultimately it's up to each judge to decide whether fair use is present or not. And it applies to all possible infringments of copyrights, not just derivative works.
- CyberRabbi 4y agoThank you for confirming that fair use is not a right. Second, yes it absolutely concerns derivative works as it is a concept in the domain of copyright. While not every violation of copyright is a derivative work, only derivative works are justified under fair use. For instance, piracy can never be justified under fair use. The new work must be transformative to a significant degree. This topic on the other hand has nothing to do with fair use as there is no derivative work being created. It also isn't a copyright violation, it's a violation of the DMCA. Specifically it violates the DMCA's provision that prohibits distributing tools used to violate the copyright of other work.
- EMIRELADERO 4y ago> While not every violation of copyright is a derivative work, only derivative works are justified under fair use. Absolutely not. Just as an example, the Sony v. Universal case involved direct copying from the TV stream to a VHS tape. Not only that, but it saved Sony itself from the contributory infringment claim too, not just the hypothetical users from their hypothetical direct infringment. As for the DMCA issues, they're probably unconstitutional. Because fair use is constitutionally required (as held by SCOTUS in Eldred and Golan), a law that results in the doctrine being basically impaled by proxy can not stand. This is the same rationale the court used in the VHS case. Because a fair use was found, Sony was allowed to continue making their devices. If it was tried today, the DMCA's anti-trafficking provisions wouldn't be allowed to stand IMO, as they would conflict constitutionally with the fair use requirement and factual finding in its favor by the court.
- MuffinFlavored 4y ago> any of their fair use rights Nintendo puts money into R&Ding product. Then somebody goes on GitHub and says "let me help diminish sales of said product and open source their otherwise intellectual property" I don't know if that is "fair use". Fair use in their terms is: buy our product, use it like a regular person If there was a clause that said "you can only run this emulator if you don't use pirated ROMs and you need to also own a physical unit", then... maybe? But I think your definition of free use is a little stretched. Would be curious to hear from others if I'm wrong.
- lelandbatey 4y agoJust cause in the end you lose money cause of X doesn't make X illegal, nor does it imply X is immoral. Also, the rules are "buy our product, do whatever you want with it." Craftsman can't pursue legal action on me because I publish guides on using hammers (even their proprietary hammer) as a doorstop. The world of software has apparently been hard at work to take away our right to do whatever we want with the things we own, but I'd encourage all who read this to push back on others trying to move the goal posts on your right to do what you like with the things you pay cold hard cash for.
- wlesieutre 4y agoFair use in the terms of TV networks was "watch it when we broadcast it like a regular person, home recording on VHS will literally destroy television," but luckily we didn't let rights-holders dictate what fair use was.
- bentley 4y agoJack Valenti, president of the MPAA, testifying before Congress in 1982: “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” For context: months before Valenti said that, in 1981, Sony’s creation and sale of the VCR had been declared contributory copyright infringement by the Ninth Circuit. An appeal to the Supreme Court was in progress. Months after Valenti said that, the Supreme Court reversed the Ninth Circuit decision—by a 5–4 vote. If a single justice had voted the other way, the VCR would have been ruled illegal across the entire United States. Unfortunately, the movie industry was crushed by the weight of home recording and fast‐forward, and never recovered. Oops, sorry, I meant to say that after their attempt to make the VCR illegal failed, they embraced the format they had tried to destroy, and as a result earned billions and billions of dollars over the subsequent decades. Some Boston strangler!