The EEF thought fit to comment on an RIAA DCMA takedown using §1201 of the DCMA aimed at a program called youtube-dl hosted on Github; I forwarded it via Facebook with a cryptic, acronym laden comment, and not surprisingly, some of my correspondents suggested I could have been more helpful and understandable. So I wrote an article on Linkedin, although much of it can be gained from the EFF article, however, this version includes a bit on oppressive economics of copyright maximalism,
youtube-dl is a program that downloads content from youtube, under the GPLv3.0 whichs require any changes made to be published with similar user rights. I am also confused as to how youtube-dl can be considered to be hacking content protection, but the take down request can be read on github. Some of it is based on the author’s marketing and some of it based on the restrictive covenants in the youtube licences which restricts users to use it for streaming only. Maybe those of us who are happy to publish our video content under FLOSS licences should find somewhere else, although that could be hard as under EU law, any content hosting intermediaries now need to have upload filters to stop copyrighted material being posted.
The DMCA stands for the Digtital Millenium Copyright Act, and Wikipedia states that,
“The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of Internet service providers and other intermediaries.”
Wikipedia
The RIAA, Recording Industries Association of America, the industry association for US music publishers, including Sony, Universal and Warners wrote to Github and asked them to remove the code under the terms of the DMCA. The DMCA also established a notify and takedown scheme, where people with an interest can claim ownership of content and require internet platforms to remove the content from their platform. This is usually done on the grounds that they own the content, or they claim that a piece of content is a non-permitted derived work. However, the music business was at the time experimenting with protecting their content using encryption and therefore sought to prohibit technology that could unprotect such protected content. They succeeded, which is why there are some strange prohibitions inside BT’s “parental” filter site blocks. This prohibition on hacking content protection technology is encapsulated in §1201 of the DMCA. Some of the encryption technology at the time was pretty simple, and failed to meet Kerckhoffs’s principle that encryption is unsafe if one needs secrets beyond the password, but whatever, this now part of the US legal code and through the efforts of the US Trade Representative and “industrial content” lobbyists is now permeating the international treaties that govern this law and the legal code of other countries.
This EFF article chronicle’s the event and looks at how clause 1201 of the DMCA has migrated to other jurisdictions.
It should be noted that the program is also a copyrighted piece of content and legal precedent is that the source code is ‘speech’ and thus protected in the US by the 1st Amendment. It was this piece of law that led to the collapse of the US software export controls and the amendment of the Wassenaar arrangement as it applied to software and encryption technology. The authors/publishers of PGP, an early email encryption program needed their foreign correspondents to have access to it, otherwise their content could not be read but the US govt. prohibited its export as they classed it as a munition. The author/publishers published the source code in a book with an OCR font and successfully claimed 1st amendment protection.
The 1st amendment protects freedom of religion and speech.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
US Constitution
Copyright is a legal monopoly created by law, because digital music and movies are non-excludable, non-rival, virtually zero [marginal] cost goods, and the fight to monetise invention in industries supplementary to music is long and sordid with music copyright holders seeking to ‘tax’ musical instruments, the trumpet, automated music machines, the pianola, and more recently blank tapes & CDs. The story is told by Jessica Littman, in her paper, “Real Copyright Reform”; the truth of the first line in the abstract is often forgotten,
A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship.
Real Copyright Reform – Jessica Littman
She identifies four roles in the supply chain, creator, distributor, maker and consumer. Copyright law is written in the interests of the distributor; laws are being written to moderate the struggle between the distributors and new makers i.e. the tech-giants building the global juke box and the losers are the creators and consumers. I wrote a review of her paper on my blog. I also show, one of the more bizarre aspects of copyright law, in the way in which prices of defunct copyright goods maintain their price.
The Music and Movie industry want a regime where all the value for creative artefacts accrues to the copyright owner, who in many cases are not be the original authors. This most certainly will gouge consumers/fans, monopolies always charge more than a perfect market price.
Most program code, which is also a creative act, is valued more for the opportunity to improve it and create derived works; it is monetised through other services and it is in the software industry that copyleft was developed. The old industries hate this model and have often sought to criminalise it.
It’s back, the EFF wrote a detailed appeal and Github have amended their policy.