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Comment by jfengel | Hacker News Reader

The digital lock is a matter of conflicting rights. They have a right to prevent infringement of their copyright; you have a right to make limited copies.

The lock on your door is not -- assuming that they don't in fact have some kind of claim on you, like a landlord to whom you have failed to pay rent. So the situations are not parallel, and it should be no surprise that the decisions would differ.

The job of a court is to decide which right prevails when rights conflict. There's often reasonable disagreement over it, and the distinction is often based on a complex and esoteric set of precedents, and on the specific wording of a law.

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They do not have a right to prevent infringement. They have a right to make copies, and I have a right to make copies, and nobody else has a right to make copies, but that does not equate to a right to prevent others from making copies, especially me, a person who has a right to make a copy. That's not to say that copyright protection is illegal, it's just not a right.

They do not have a right to prevent infringement.

In the US at least, that right is explicitly granted in our Constitution. ("For limited Times," LOL.)

The right of a limited monopoly does not include a right to make that monopoly permanent by locking it up.

Yes, rightsholders should be forced to choose between legal and technical protection. They should not be allowed to use both, because DRM on copyrighted material steals from the future public domain.

No, that won't change while either of us is still drawing breath. The courts continue to maintain that rightsholders are entitled to make their monopoly permanent.

> Yes, rightsholders should be forced to choose between legal and technical protection.

This is not a serious argument because there is no doubt that they would choose legal protection, since the technical protection would never hold. It doesn't even hold as it is, when circumventing it is illegal.

The answer is much simpler: There should be no legal prohibition on circumventing technical protection. It's completely inane. If the circumvention is happening in order to infringe copyright then the infringement is already unlawful and doesn't have to be separately unlawful as a circumvention. Whereas if the circumvention is happening in order to exercise fair use or because the DRM system is restricting a work no longer under copyright, it should certainly not be illegal to circumvent it then.

So it has no legitimate purpose. Either the technical measure holds on its own (unlikely), or the legal protection should be coterminous with any resulting infringement and the technical measure should be irrelevant.

The idea wasn't to make infringement more illegal, it was to take DRM removal tools off the market. There were already theories of secondary liability - i.e. "contributory infringement" - for aiding someone in an infringement, but the courts had refused to apply them to new copying technologies[0]. Copyright owners also hoped that this would make player vendors obedient to them far beyond what the law actually mandated.

In this respect, DMCA 1201 has been fantastically successful at terrorizing basically everyone into overcomplying. There's no concrete definition of what a copy protection scheme actually is[2], so you can point to any undesirable antifeature of a product and call that DRM. This is pure catnip to gaslighting control freak companies like Apple.

For what it's worth, if you put something uncopyrightable under a DMCA 1201 technical protection measure, it holds no legal value[1]. I imagine this would also apply to public domain works, so you can legally decrypt them. Problem is, I struggle to see a legal way to sell the tools necessary to decrypt such works.

[0] I'm specifically referring to the Betamax case, though that one was less "you're selling piracy tools" and more "you're telling people to go pirate movies". The Grokster case would partially overturn this, so you can get contributory liability for advertising infringing use cases of your software (aka "inducement"), independent of DMCA 1201.

I suspect that if inducement was a valid theory of liability in the 80s, we wouldn't have seen such a huge, cross-industry push to enact DMCA 1201. People selling cracks would be legally liable under the inducement theory, but we wouldn't have a blanket ban on tools that could be used lawfully, like, say, tools that let you defeat parts pairing.

[1] This, oddly enough, had to be proven in court with cases about garage door openers and printer cartridges, which took almost a decade to resolve.

[2] The original law did codify existing DRM schemes (notably Macrovision, which it spends whole pages defining), but none of those are relevant today.

> Copyright owners also hoped that this would make player vendors obedient to them far beyond what the law actually mandated.

> This is pure catnip to gaslighting control freak companies like Apple.

But this is exactly why it needs to be repealed. Its stated purpose is a farce and its true purpose is an injustice.

> The Grokster case would partially overturn this, so you can get contributory liability for advertising infringing use cases of your software (aka "inducement"), independent of DMCA 1201.

Which seems some combination of useless and unreasonable. Okay, so now Bram Cohen is diligent to never advertise BitTorrent for infringement, and then doesn't get sued because it has substantial non-infringing uses. But Grokster had non-infringing uses too, and many people still use BitTorrent for copyright infringement, so it seems like all the decision does is bring about censorship.

For example, what happens if an employee of a tech company wants to come out as a proponent of the Pirate Party, advocate abolishing copyright and describe how advantageous the company's products could be to people without it? Isn't that just core political censorship, since it could get their company sued? Meanwhile the same tool is legal as long as they don't do that, so the only difference is the expression of political speech.

> Problem is, I struggle to see a legal way to sell the tools necessary to decrypt such works.

The other problem is, what does that even mean?

Suppose I put a copyrighted work in a box and screw it shut. Is a screw driver now a circumvention device? It has uses beyond copyright infringement, but as soon as anybody uses CSS on a DVD of a public domain film, so does DeCSS.

It would be interesting if all DRM was mandated to include an expiration date, so that users don't have to worry about what happens if the authentication server (thinking of Kindle books here) goes belly-up.

Just to make sure I'm not late to the office, I sometimes set my clock forward 100 years.

My personal opinion is that this should have been part of DMCA 1201 from the get-go.

We already have a Copyright Office triennial rulemaking to decide, without having to go through a court, if a particular hypothetical instance of breaking DRM is lawful. But it's still illegal to actually provide the tools needed to break that DRM, and as far as I'm aware that doesn't go away even if you only provide tools to people who need them. So everyone's expected to independently research how to break DRM to build one-off hacks for specific systems. This seems like an extremely high burden when the DRM is implicating fair use, which is part of free speech.

What we should have done was oblige DRM vendors to provide lawful access to protected media. If they don't comply in some way to facilitate the access that was improperly blocked, then we let the Copyright Office march in and strip that DRM system of its legal protections.

No, you're missing the point. The exclusive right to make copies (In the constitution) ≠ the right to prevent others from making copies.

You make copies and if someone else does you sue them and the court stops them, not you.

It's... an easy point to miss, I guess. What difference does it make who enforces the copyright?

So a literal electric door lock would have the right to lock your door if they think you might break the copy right on the door lock you purchased from them.

Sometimes analogies are a useful tool for understanding a situation.

This one is not.

Analogies are sometimes useful for understanding, but they rarely seem useful in marking an argument. It always seems redirect the argument into the ways that the analogy is different. (If the analogy weren't different, then it wouldn't be any clearer.)

If one goes into it with the intention of using the differences in the analogies to illuminate the domain, it can be helpful. But any argument of the form "X is like Y, and therefore since p(Y) is obvious then p(X) must also be true" is pretty much destined to shed little light but much heat.

I find an analogies useful in argument. They allow me to apply the logic someone is applying in an unfamiliar domain to a domain that is familiar to all, as a way of seeing how the logic holds up. Naturally, if the domains are too dissimilar, that becomes the focus of discussion. Like all tools, analogies can be used poorly.

An analogy is kind of like a car ... OK no. Not going there. I'm out.

You wouldn't download an analogy.

Went there just for you :)

If the laws about actual doors were written the same way as laws about copyright: yes.

Yep, I think the analogy would be better understood if it said they would stop the lock from functioning properly if the company had a suspicion that you were circumventing / reverse-engineering the lock.

> The digital lock is a matter of conflicting rights. They have a right to prevent infringement of their copyright; you have a right to make limited copies.

So in this analogy you have a house with two rooms in it, you have a right to one room and they have a right to the other, but now they've put a lock on the door to the whole house. That puts them in the wrong, does it not?

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