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> ”So you have a situation where a person creates a work, a large rights owner buys it up, and then they get to milk all the benefits while preventing the publi

> ”So you have a situation where a person creates a work, a large rights owner buys it up, and then they get to milk all the benefits while preventing the public from having their rightful free access.” The root of your argument seems to be that the public has a right to free access of someone’s work, why?

hn_acker 3y ago
I think what LocalH was referring to by "rightful free access" was that copyrighted works are supposed to fall into the public domain after the copyright term expires. The public is entitled to unrestricted access to works whose copyright terms have expired. Excessively long copyright terms impeded that access. In the US, copyright is the means to incentivize people to make creative works. Copyright is a limited-time exclusive right. When that right expires, the First Amendment is no longer constrained by the Copyright Clause. (I wrote more about the Copyright Clause in a different comment [1].) In other words, sharing and modifying public domain works is protected by freedom of expression. Copyright is a social contract. The author receives: exclusive copying rights to the author's creative works. The public receives: the author's creative works at some point in the future, though the author (or rather the rightsholders, should the author partially, temporarily, or permanently give the copyright to other people) can set licenses for certain people (such as buyers and remixers) to access/copy the works now. [1] https://news.ycombinator.com/item?id=38812469 https://news.ycombinator.com/item?id=38812469
- johnnyanmac 3y ago
  I don't think anyone minds a shorter copyright length. the 100 years crap is way too long. But that doesn't mean DMCA as a whole needs to expire. It just needs to be reeled the hell in and especially punish blatantly false claims.
  - hn_acker 3y ago
    Copyright law in general, including online-oriented parts such as DMCA 512 (17 U.S. Code § 512 [1])), needs meaningful penalties for false copyright infringement claims (including automated mass reports with negligent/no human review) that are no more than one magnitude smaller than what would be the corresponding penalties for infringement. (Equal magnitude might intimidate too many lower-wealth authors from filing rightful infringement suits.) Currently, successfully fighting an infringement lawsuit with a fair use defense will still ruin you because of the attorney fees and court fees. A DMCA infringement notice requires only good faith from the rightsholder even if the claim turns out to be patently false, yet someone filing a counter notice against a false infringement claim does so under penalty of perjury [2]. Meanwhile, the current safe harbor standard requires service providers with user-uploaded content to remove material as soon as possible solely based on a claim of infringement with respect to that material [1]: > upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Again, these infringement notices can be automated or BS [3] (whether intentional or not), but the service provider has to comply to avoid third-party liability. The obvious result is overblocking. The safe harbor standard should be modified to require the service provider to take down allegedly infringing content only after the service provider receives an according court order to do so. That would be a huge improvement to DMCA 512 on its own, though it shouldn't be the only one. DMCA 1201 (17 U.S. Code § 1201 [4]) is unfixable in my opinion. That's the part on technical restrictions: bypassing technical restrictions to access copyrighted copyrighted material is treated as copyright infringement of that material, even when the actions the person does with the locked-down material wouldn't be infringing. For example, you can't modify DRMed software (requires bypassing the DRM) on your own computers i.e. the rightsholder has control over how your computer runs the software. Because of that, DMCA 1201 is one of the key obstacles to right to repair. (The US Copyright Office periodically evaluates requests for specific, narrow exceptions to DMCA 1201 which expire every three years. People have to ask for a small portion of their rights back every three years [5]. But as I mentioned, I don't think DMCA 1201 should exist at all, unlike with DMCA 512.) [1] https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 [2] https://cyberlaw.stanford.edu/blog/2017/01/dmca-counter-notice-does-it-work-correct-erroneous-takedowns https://cyberlaw.stanford.edu/blog/2017/01/dmca-counter-noti... [3] https://www.techdirt.com/2023/12/04/google-takes-down-downloader-app-again-after-bullshit-dmca-complaint/ https://www.techdirt.com/2023/12/04/google-takes-down-downlo... [4] https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201 [5] https://www.eff.org/issues/dmca-rulemaking https://www.eff.org/issues/dmca-rulemaking ~~~~~~~~~~~~~~~~ Everything below this line is bonus. ~~~~~~~~~~~~~~~~ Both regular copyright law and the technical restrictions portions prohibit people from copying the files/software they bought for their personal use. Want to modify DRMed software on your own computer as I mentioned before? Double infringement. Want to copy music from a DRMed DVD to your computer or phone for easier listening? Double infringement. Want to copy a DRMed e-book so you can read it using a different app/e-reader? Double-infringement. Regular copyright law alone has yet more problems than those within DMCA 512. For example, copying copyrighted works to preserve them is infringement, even if the preservationists/archivists would never publish any copies until after the copyright terms expire. Combined with excessively long copyright terms (life of the author plus 70 years for most works in the US, flat 120/95 years regardless of death in a few cases [B1]), preservationists are forced to let copyright material on old media disintegrate while copyright holders do nothing about it [B2]: > The verdict is in: adding an extra 20 years to the US copyright term was a “big mistake.” This is not a quote from someone who is equivocal about copyright; it is a quote from the former head of our Copyright Office. Another former Director of the Copyright Office proposed shortening the copyright term by 20 years unless copyright owners “assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner.” Copyright holders such as Disney could readily secure “the full benefit of the additional twenty years,” while all of the works no longer being exploited would enter the public domain, fulfilling copyright’s goal of benefiting the public. > Indeed, there is a consensus among policymakers, economists, and academics that lengthy copyright extensions impose costs that far outweigh their benefits. Why? The benefits are minuscule—economists (including five Nobel laureates) have shown that term extension does not spur additional creativity. At the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders. Films have disintegrated because preservationists can’t digitize them. The works of historians and journalists are incomplete. Artists find their cultural heritage off limits. (See studies like the Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works, and economic studies of the effects of copyright.) [B1] https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Duration_of_copyright https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St... [B2] https://web.law.duke.edu/cspd/publicdomainday/2024/ https://web.law.duke.edu/cspd/publicdomainday/2024/ By the way, Tom Scott has an insightful video called "YouTube's copyright system isn't broken. The world's is." [B3] on problems with copyright law which exist worldwide. One of the issues Scott discusses is misplaced ire toward YouTube's takedown system. [B3] https://www.youtube.com/watch?v=1Jwo5qc78QU https://www.youtube.com/watch?v=1Jwo5qc78QU

hn_acker 3y ago

I think what LocalH was referring to by "rightful free access" was that copyrighted works are supposed to fall into the public domain after the copyright term expires. The public is entitled to unrestricted access to works whose copyright terms have expired. Excessively long copyright terms impeded that access. In the US, copyright is the means to incentivize people to make creative works. Copyright is a limited-time exclusive right. When that right expires, the First Amendment is no longer constrained by the Copyright Clause. (I wrote more about the Copyright Clause in a different comment [1].) In other words, sharing and modifying public domain works is protected by freedom of expression. Copyright is a social contract. The author receives: exclusive copying rights to the author's creative works. The public receives: the author's creative works at some point in the future, though the author (or rather the rightsholders, should the author partially, temporarily, or permanently give the copyright to other people) can set licenses for certain people (such as buyers and remixers) to access/copy the works now. [1] https://news.ycombinator.com/item?id=38812469 https://news.ycombinator.com/item?id=38812469

johnnyanmac 3y ago
I don't think anyone minds a shorter copyright length. the 100 years crap is way too long. But that doesn't mean DMCA as a whole needs to expire. It just needs to be reeled the hell in and especially punish blatantly false claims.
- hn_acker 3y ago
  Copyright law in general, including online-oriented parts such as DMCA 512 (17 U.S. Code § 512 [1])), needs meaningful penalties for false copyright infringement claims (including automated mass reports with negligent/no human review) that are no more than one magnitude smaller than what would be the corresponding penalties for infringement. (Equal magnitude might intimidate too many lower-wealth authors from filing rightful infringement suits.) Currently, successfully fighting an infringement lawsuit with a fair use defense will still ruin you because of the attorney fees and court fees. A DMCA infringement notice requires only good faith from the rightsholder even if the claim turns out to be patently false, yet someone filing a counter notice against a false infringement claim does so under penalty of perjury [2]. Meanwhile, the current safe harbor standard requires service providers with user-uploaded content to remove material as soon as possible solely based on a claim of infringement with respect to that material [1]: > upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Again, these infringement notices can be automated or BS [3] (whether intentional or not), but the service provider has to comply to avoid third-party liability. The obvious result is overblocking. The safe harbor standard should be modified to require the service provider to take down allegedly infringing content only after the service provider receives an according court order to do so. That would be a huge improvement to DMCA 512 on its own, though it shouldn't be the only one. DMCA 1201 (17 U.S. Code § 1201 [4]) is unfixable in my opinion. That's the part on technical restrictions: bypassing technical restrictions to access copyrighted copyrighted material is treated as copyright infringement of that material, even when the actions the person does with the locked-down material wouldn't be infringing. For example, you can't modify DRMed software (requires bypassing the DRM) on your own computers i.e. the rightsholder has control over how your computer runs the software. Because of that, DMCA 1201 is one of the key obstacles to right to repair. (The US Copyright Office periodically evaluates requests for specific, narrow exceptions to DMCA 1201 which expire every three years. People have to ask for a small portion of their rights back every three years [5]. But as I mentioned, I don't think DMCA 1201 should exist at all, unlike with DMCA 512.) [1] https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 [2] https://cyberlaw.stanford.edu/blog/2017/01/dmca-counter-notice-does-it-work-correct-erroneous-takedowns https://cyberlaw.stanford.edu/blog/2017/01/dmca-counter-noti... [3] https://www.techdirt.com/2023/12/04/google-takes-down-downloader-app-again-after-bullshit-dmca-complaint/ https://www.techdirt.com/2023/12/04/google-takes-down-downlo... [4] https://www.law.cornell.edu/uscode/text/17/1201 https://www.law.cornell.edu/uscode/text/17/1201 [5] https://www.eff.org/issues/dmca-rulemaking https://www.eff.org/issues/dmca-rulemaking ~~~~~~~~~~~~~~~~ Everything below this line is bonus. ~~~~~~~~~~~~~~~~ Both regular copyright law and the technical restrictions portions prohibit people from copying the files/software they bought for their personal use. Want to modify DRMed software on your own computer as I mentioned before? Double infringement. Want to copy music from a DRMed DVD to your computer or phone for easier listening? Double infringement. Want to copy a DRMed e-book so you can read it using a different app/e-reader? Double-infringement. Regular copyright law alone has yet more problems than those within DMCA 512. For example, copying copyrighted works to preserve them is infringement, even if the preservationists/archivists would never publish any copies until after the copyright terms expire. Combined with excessively long copyright terms (life of the author plus 70 years for most works in the US, flat 120/95 years regardless of death in a few cases [B1]), preservationists are forced to let copyright material on old media disintegrate while copyright holders do nothing about it [B2]: > The verdict is in: adding an extra 20 years to the US copyright term was a “big mistake.” This is not a quote from someone who is equivocal about copyright; it is a quote from the former head of our Copyright Office. Another former Director of the Copyright Office proposed shortening the copyright term by 20 years unless copyright owners “assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner.” Copyright holders such as Disney could readily secure “the full benefit of the additional twenty years,” while all of the works no longer being exploited would enter the public domain, fulfilling copyright’s goal of benefiting the public. > Indeed, there is a consensus among policymakers, economists, and academics that lengthy copyright extensions impose costs that far outweigh their benefits. Why? The benefits are minuscule—economists (including five Nobel laureates) have shown that term extension does not spur additional creativity. At the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders. Films have disintegrated because preservationists can’t digitize them. The works of historians and journalists are incomplete. Artists find their cultural heritage off limits. (See studies like the Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works, and economic studies of the effects of copyright.) [B1] https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States#Duration_of_copyright https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St... [B2] https://web.law.duke.edu/cspd/publicdomainday/2024/ https://web.law.duke.edu/cspd/publicdomainday/2024/ By the way, Tom Scott has an insightful video called "YouTube's copyright system isn't broken. The world's is." [B3] on problems with copyright law which exist worldwide. One of the issues Scott discusses is misplaced ire toward YouTube's takedown system. [B3] https://www.youtube.com/watch?v=1Jwo5qc78QU https://www.youtube.com/watch?v=1Jwo5qc78QU