HACKER Q&A
📣 throwaway894345

Why has DMCA Circumvention Prohibition not been repealed?


I understand the high level reasoning is “government corruption”, but I’m trying to understand what efforts have been made to allow people to rip their own lawfully purchased media. Are any congresspeople fighting to repeal this section of the DMCA? Has any legislation been proposed? Which senators are most firmly advocating for this overt MPAA rent seeking? Why is this not as popular as “right to repair” considering how many more people this impacts? This is a pretty wide-open question, so anything people can add to help me understand this history of this conflict is welcome.

For those who don’t know, Section 1201 makes it illegal to break any DRM or to make or distribute software useful for this purpose. The effect is that people who have a valid license to the content must pay over and over to consume that content (once for blu-ray, once for Apple TV, once for Amazon, etc).


  👤 dannyobrien Accepted Answer ✓
Zoe Lofgren has, for the last decade, regularly led Congressional work to mitigate the damage of DMCA 1201. (See this one from a few years back https://www.eff.org/deeplinks/2017/02/fair-use-consumer-prot... ). EFF currently has a project, Apollo 1201, led by Cory Doctorow, to seek legal challenges to the law.

It can be hard, because 1201 is an implementation of an international treaty, the 1996 WIPO Copyright Treaty, which requires language on anti-circumvention technology. The Treaty was passed after language similar to 1201 failed to get traction in the US Congress before '96. Treaties, in theory, trump domestic legislation, in that the US has made a commitment to honor the treaty, so the law is meant to reflect that commitment.

However, the treaty itself only specifies that "Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."; DMCA 1201 goes much further than that. So that we can imagine a fix to the law that returns the US to a more balanced implementation of this language.

However! The United States has also entered into a number of bilateral treaties with other countries, requiring them to also implement DMCA 1201 language, and many states have just cut-and-pasted the 1201 language as part of their compliance with the Copyright Treaty. The EU has similar requirements on its member nations: https://en.wikipedia.org/wiki/Anti-circumvention

You might want to read some of EFF's historic reports on the development of the law: https://www.eff.org/wp/unintended-consequences-under-dmca/ar...

Politically, there's been a concern for a number of years that re-opening the DMCA might lead to worse outcomes: ironically, the strongest advocates for revisiting or repealing the DMCA has come from the rightsholders, who feel they have an opportunity (given the tech backlash) to draft an even more draconian law. 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/ where individuals and companies can push for specific exceptions to the blanket ban. This is where you'll have seen legal permission for filmmakers, videogame archivists, etc.


👤 car_analogy
The film industry made a record-breaking $100 billion last year - https://www.forbes.com/sites/rosaescandon/2020/03/12/the-fil...

The fault lies with us. Do you pirate? Abstain from entertainment media? Or do you fund lobbying efforts to keep circumvention illegal? The numbers in the Forbes article suggest most do the latter.


👤 otterley
Because of all the things the electorate cares about, DMCA reform is near the bottom of the list. People are largely happy with the status quo where they can pay a few bucks a month and stream music and TV to their heart’s content.

And if a threat to this regime were to seriously arise, the entertainment and software industries — which are both still some of the highest-growth industries in the country - would take notice and scream bloody murder. These industries employ millions of Americans (including many people who frequent HN) and generate billions in revenue, and they aren’t going down without a fight.


👤 mikece
Circumvention Prohibition is is likely a measure which has some legitimate uses which justify its inclusion in law but is applied to many things as a technicality to limit consumer freedom where essential IP/competitive advantage is not harmed by circumventing what is being blocked. It would be better to amend the law with guidance describing the difference between illicit and licit application of circumvention protection. Using this clause as a broad-spectrum way to block Right To Repair is illegitimate.

👤 zzzeek
> considering how many more people this impacts?

people who want to repair their laptops is likely a lot more people compared to those capable and interested in running anti-DRM software so that they can get hardcopies of movies from Apple TV.

legislation that would impact a lot of people and be a big deal would be requiring the various streaming providers to allow transferring someone's purchased content between platforms for free or significantly discounted price. that is, a law which allows anyone to pay for their content only once would impact hundreds of millions of consumers, rather than a law that lets relatively few technically sophisticated users bypass their DRM. The difficulty in gaining support for such an idea should be fairly self evident.


👤 hedora
Regulatory capture. There's lots of money in running third party repair shops, and the incumbents in that space lobby congress.

For anti-circumvention, libraries would be the main beneficiaries, and they don't do much lobbying.


👤 rayiner
> I understand the high level reasoning is “government corruption”

Then you don't understand. I know a lot of (non-tech) liberals. If you polled them, most would probably support getting rid of the anti-circumvention provision, if you explained to them what it was actually about. Many probably wouldn't, though--they like Disney+, Netflix, etc. But not a single one would spend the smallest amount of political capital to change the law.

Talking about this in terms of "corruption" is not helpful to understanding. The fact is that when you have a highly technical issue like this, most politicians will only understand it deeply enough to slot it into one of their high-level mental buckets. In this case, it's probably something like the "whiney consumer organizations versus job creators" bucket.

That's why it's not just a money issue. In the 2020 election cycle, the MPAA spent $224,018 on campaign contributions, and about $3.3 million on lobbying. The latter is mostly paying lawyers to put together PowerPoint presentations to political staff members telling them how to vote on particular issues. An author on Kick Starter recently raised over $20 million for some Sci Fi books: https://www.cnbc.com/2022/03/04/brandon-sanderson-kickstarte.... You could outraise the MPAA easily. But you'd never persuade a politician to vote differently on the issue than the bucket they were going to vote for anyway.


👤 roastedpeacock
Another disturbing issue is the 'laundering' of DMCA analogues into other countries through trade-deals and other extra-political processes, with the general apathy and sweeping under the rug that precedes these changes.

While not directly related to anti-circumvention, the only recent positive development in the user-rights of proprietary software I can recall is an EU case by a private software vendor against the Belgian government in that courts ruled that reverse-engineering and patching of 'issues' in legitimately obtained software was not a crime and therefore the plaintiff lacked a case, even when a license prohibition applied.

Some persons were unconvinced of impact because defendant was Belgian government (they have taxpayers foot the legal bill) but the facts involved are not trivial because there have been cases with the reverse-engineering and patching of legitimately obtained video-games for purposes that are not piracy that did not end up with a positive outcome.

I see the next decade going one of two ways. Big companies attempt to attach criminal liability to perceived violations of their licenses or the likes of anti-trust wake up and we see more reinforcement of user-rights similar to the EU case.


👤 R0b0t1
It is allowed in specific circumstances, namely you own the rights to the work you are breaking out or are a researcher. The interpretation of the law that cause GitHub takedowns is overly restrictive and not right.

In theory if you are deprived of your ability to access a paid for work you can sue. The problem is, as you might expect, this usually happens once the company is defunct.


👤 heavyset_go
Someone please correct me if I'm wrong, but I was under the impression that DMCA anticircumvention didn't apply to fair use of protected content. That's to say that it would probably be fair use to circumvent DRM, say, if a journalist wanted to include a short clip from a Netflix special as part of their reporting.