The DMCA came about because there was a shift towards the distribution of copyrighted materials in digital form (copyright) accompanied by new methods of protection. Through the use of "digital locks," technological systems behind which these copyrighted materials are protected, producers and manufacturers are able to automate fine grained control over who can access, use, and/or copy their works and under what conditions. Producers insist these "digital locks" are necessary to protect their materials from being pirated or misappropriated.
But, these new technological systems, and the DMCA provisions making it a crime to bypass them, undermine individuals ability to make "fair use" of digital information, and essentially replace the negotiation of the terms of use for those products with unilateral terms dictated by copyright owners. These self-help technical protection mechanisms are generally not evident to the purchaser or user until after the sale. In some cases, producers who use these technical locks to enforce limits on access and use of their works fail to disclose the terms of use to the purchasers or licensees of their products.
Technological protection systems are already in place in DVDs, eBooks, video game consoles, robotic toys, Internet streaming, and password-protected sections of web sites. The fact that a digital protection may be really weak and easy to circumvent has not prevented courts from applying this law to punish those who bypass them.
As a result, the legitimate activities of scientists, software engineers, journalists, and others have been chilled. The DMCA has been used by copyright holders and the government to prevent the creation of third-party software products, silence computer scientists, and prosecute journalists who provide hypertext links to software code.
As a result, the legitimate activities of scientists, software engineers, journalists, and others have been chilled. The DMCA has been used by copyright holders and the government to prevent the creation of third-party software products, silence computer scientists, and prosecute journalists who provide hypertext links to software code.
- The Register of Copyrights and the Librarian of Congress would do well to go back to the drawing board and come up with a process, and a standard, that will help a broader array of concerned users to make their case for legitimate exemptions.
- The Register should revisit the long-standing policy of making the proponent of an exemption demonstrate the need for it every three years, no matter how obvious the need for the exemption is, or how many times it’s been granted in the past. It’s absurd to automatically put the burden of proof on the people seeking an exemption under all circumstances, and it's not required by the DMCA. Once the Librarian grants an exemption, the burden should shift to those who oppose it to show in future rulemakings why it isn’t needed anymore.
- Finally, the Copyright Office should be more receptive to granting exemptions for innovative uses of new and emerging technologies. The fact that an exemption was granted for smartphones but not tablets, even though they are virtually interchangeable devices with increasingly similar functionalities, shows that the rulemaking process doesn’t track the ways consumers are using those devices today.
To see what was granted and was denied, read the 2012 DMCA Rulemaking article.
Are you aware of other examples where the DMCA has been used to stop people from using products they buy and change because of weak controls or fair use assumptions? What about product developers that allow people to circumvent their products (e.g., Google Glass, X-box Kinect - see http://openkinect.org/wiki/Main_Page)?
Are you aware of other examples where the DMCA has been used to stop people from using products they buy and change because of weak controls or fair use assumptions? What about product developers that allow people to circumvent their products (e.g., Google Glass, X-box Kinect - see http://openkinect.org/wiki/Main_Page)?
And then there is this article from EFF, who is asking for a federal court in Florida to unseal records from the Disney v. Hotfile case describing Warner Brothers' system for sending takedown notices to websites. Warner, and the other plaintiffs in the case, want that information kept secret forever. But Congress is asking for input about the notice-and-takedown system created by the Digital Millennium Copyright Act, and a hearing is coming up soon.
ReplyDeleteUnder the DMCA, copyright holders or their agents can send notices to Internet sites, declaring that some material posted by users infringes their copyright. The Internet site then has a legal incentive to take the material down, to avoid liability.(In practice, most sites respond to every DMCA notice by taking down the targeted content, even when the notices are improper.) Warner, like some other large media companies, uses some combination of web-crawling search robots and human review to find files that it claims are infringing its copyright, and then sending takedown notices to the sites that host the files.
Of course copyright holders have legal rights to their art, but the punishments are ridiculous. I think the fines should be made reasonable and that movies and music should be able to hit the public domain sooner as well. People get in trouble for sampling seconds of music that is over 20 years old. This should not be allowed, because especially with music, the same sounds and beats are naturally enjoyed by audiences and thus there should be less strict enforcement to mixing and sampling.
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