A legal opinion on the DMCA

Discussion in 'General Chat' started by lostinlodos, Mar 28, 2008.

  1. lostinlodos

    lostinlodos Well-Known Member

    Be it noted this is only my legal opinion, based on my experience in computing, entertainment, and as a licensed legal practitioner. It represents no one but myself, on only myself.

    This first post covers “Title I” “titles” 1-18 completely and “Title II” “titles” 1-4, and it’s related amendments. I will update this over the next few weeks as I have time to continue sifting through this. I would rather do this slowly and be sure not to make mistakes, comparing against caselogs and judgements of past.

    Two things of note first:
    1) No case has yet been completed within the United States or any of its possessions or autonomous regions that has been decided indisputly for violation of the entirety of the DMCA. Seven cases of note that have been filed in California, Missouri, Illinois, and New York, have all been filed under violations of specific titles and paragraphs of the DMCA; all still awaiting trial or under appeal.
    2) The DMCA has allowed exceptions for “subverting” copy restrictions in digital media that had previously been illegal, dating back to the 1989 VCDLoc amendment (the first to cover any digital format copy protection). This has lead to the DMCA being used as a supportive defence in some late copyright violation cases.

    Various ins and outs:
    Also of note is that the DMCA has conflicting clauses in various parts. With a changing legal tide where defendants are growingly pledging to fight cases filed against them representing themselves has lead to 3637 of the 3893 2007 filed cases or petitions for filing; being dropped.
    Prior to the DMCA and even in current CRV related filings; by their own numerous admissions to the fact, the RIAA, MPAA, and most of “big media” have all claimed that they rely on the “expense of fighting such case {sic} as a deterrent to ‘illegal’ activities and to encourage pre-trial settlements” –Sony lawyer.
    Fighting a case when self-representing is relatively cheap if not free from charge in most cases, and 46 states have civil statutes similar to Illinois Eminent and Anticipated Net-Worth:Net-Value laws which bar compensation for the plaintiff’s legal fees if the fees are in excess of 25% the plaintiff’s own net worth (not allowed to include joint/family net worth) and is applied to both civil and criminal filings as well as state-legislature hearings. 30 states have laws or statutes that guarantee bankruptcy-filing protections of defendants who loose cases where the violation’s value is in excess of 200% of the person’s total net-worth. Essentially in these cases even if the filing company/group wins the case they have little chance of recovering any monetary “loss” as the inflated value of the “crime” that they claim when filing (avg $300 per CD/DVD home copy made and $5000+ per CDDA/DVD_VTS track made available online) in order to make jurors sympathetic to their losses also place the value over the % cut-off for most plaintiffs.

    The DMCA violates every international copyright treaty the US had prior to its enactment. Currently only two countries regularly cooperate with the US regarding DMCA violations, either by US citizens residing in their country, or that country’s citizens who violated the DMCA: Australia and the United Kingdom’s possessions.

    Under international law (and DMCA amendments) , the DMCA may only be applied to media originally developed for distribution to American citizens in American possessions or media distributed by an American company that is different in its American format to the original. In lay terms, the posting of a Japanese film online even in America, does not violate the DMCA. Nor does the distribution of a Chinese film that is also distributed by an American company in America. For example, Jet Li’s Hero is distributed by Sony Pictures Classic in the US. The posting of the Chinese or Japanese DVD’s image of the film within the US would not be a violation of the DMCA. This is because the American film contains a different video track that is not on the original or other international versions, an FBI warning and Sony trailers, and logo cells. The same thing applies to American films distributed in foreign companies. Horton hears a who is currently limitedly in theatres in the US. It was also released on R:0 and R:All discs in many Asian and Eastern European countries almost three weeks ago. The distribution of the International version of the film DVD in the US does not violate the DMCA, as the international version is different from the US; it contains localized subtitles.

    Rental films, DVDs, HD-DVDs, Bluray Discs, VCDs and other media formats, are not specifically covered or related to DMCA other than being covered by the new copy allowances it offers and the media itself being digital media. Rental films are covered by the First Purchase regulations only.

    Libraries selections are not affected by the DMCA. Certain films however are restricted from lending by the Patriot Act, such as critical documentaries that point out the US Government’s illegal activities, and films that encourage violence or are harmful to the public, such as SLC-Punk, Anarchy Rulz and Baise Moi, are barred from being made available to the public (but are available for critical or research purposes in Universities).
  2. lostinlodos

    lostinlodos Well-Known Member

    “prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work”

    Library of Congress Authorized Exceptions Amendment; “…[allows circumvention] for the purpose of cataloging or storage”.

    “…prohibits manufacturing or making available technologies, products and services used to defeat technological measures controlling access.”

    [DMCA does not affect] “ rights, remedies, limitations, or defenses to copyright infringement, including fair use, …[nor] alter the existing doctrines of vicarious and contributory liability.”

    Defense to copyright infringement remedy defense to the prohibition established in Chapter 12.

    “Congress recognized that there may be legitimate reasons for engaging in circumvention.”

    Section 1201(f) allows “software developers to circumvent technological protection measures of a lawfully obtained computer program in order to identify the elements necessary to achieve interoperability of an independently created computer program with other programs.”

    No direct regulation exists barring the use of a previously created program to reverse engineer a current program for Fair Use rights on other software or programs exists, and congress struck down an amendment covering this in 2007. Since any disc that contains CSS, ACSS, BD+, Java, or other computerized code (anything digital) constitutes software, then the reverse engineering of programs such as PowerDVD and the media discs, referred to as software, is legal in order to guarantee compatibility of such software on other software and with other software and hardware. Thereby allowing the circumvention of CP software on a rented or owned disc in order to make it compatible for use on, say, an iPOD or Sega Nomad is legal! This defence was used in Sony Pictures LLC, Sony Media International, and Sony Pictures Classic Inc vs Jones Chi and Does (California). The case was held for a change of venue jurisdiction do to a conflict of interest within the town populace, barring an impartial jury.

    That first paragraph also protects the circumvention of ALL aspects of the media when removing structural protections and deliberate mastering errors on DVDs for use on “legacy” players that can not read the disc. It could also be argued that when films are recorded to the disc in non-sequential VOBs that the “ripping” and reconverting to a fluent sequential track may be allowable. This statement also directly allows for the remastering (copying and ripping) of UDF DVDs on one system for use on “legacy” systems that are incompatable with the format, including use of on dos-based Windows PCs with DVD players (estimated to be between 70% and 75% of the non-XP install-base.)

    “…[may] develop and employ technological means to circumvent and make available to others the information or means for the purpose of achieving interoperability.”

    “…may [reverse engineer] the lawfully acquired program only where the elements
    necessary to achieve interoperability are not readily available”

    Since no film is available on media used by many portable devices, making transfers to those devices by means of copyright circumvention is perceivably allowed. It does call into question the legality of films already made available on iTunes and Microsoft Live Store being copied from DVDs/CDs and transferred to iPod or Zune devices however.

    Title Section 15: Exception Regarding Minors.
    To alleviate concern that the DMCA might inadvertently make it unlawful for parents to protect their children from [“]pornography[“] and other [“]harmful[“] material, the DMCA permits the ”manufacture of a circumvention component whose sole purpose is to assist parents in preventing access of minors to [“]objectionable[“] material. Any parent has the right, under Barrister vs. Does to remove any portion of any film they deem objectionable. The ruling in that case found and applied against including two people who found copyright notices objectionable as it “stirred a conversation in which [the socialist-leaning parents] had to explain the negative aspects of an evil government and capitalism to [their] children.”

    Protection of Personally Identifying Information title.
    The DMCA addresses privacy concerns by “permitting circumvention for the limited purpose of identifying and disabling as (sic) technological means by which it disseminates personally identifying information reflecting the online activities of the user.”

    This would allow for the use such of programs such as AnyDVD to work in their entirety when removing software such as iNterActive Media, PCFriendly, and other software and Sony JS on BluRay discs, among others, as they “call home” and “register” discs, thereby being a collector of information distributed online.
    ‘Though “only applicable if the user is not provided with adequate notice and the capability to prevent or restrict such collection or dissemination….” no such ability exists in the “legal” market.

    Technical Amendments


    "a provider of online services or network access, or the operator of facilities therefor"
    MAY be able to be used as a defence for those who distribute or allow access to distribute, or “pass-through” distributed media on servers, P2P networks, cache and transmit farms (another form of P2P) and direct-dial bulletin boards.
  3. Gentoo

    Gentoo New Member

    Nice write up. I've been meaning to do some research on this myself, I just haven't had the time.

    Could you please post the cite for Barrister vs. Does? Search by names uncovers nothing relevant in Westlaw or Lexis.
  4. lostinlodos

    lostinlodos Well-Known Member

    There's still a LONG way for me to go in that. That's only the first Title and a little. Barrister vs. Does was lifted from [WikiSource (the WikiMedia FOIA resource) but I got it some time ago and can't track it back at the moment. I started looking into this after an argument (here or at digital digest) in the middle of last year. Problem is the "search" function on that site only searches titles and not references, so I have to find the actual case title to find the link again.
    I'll source out everything by my last post, and try to keep a running list of links as I move forward. I've almost 200 megs of raw text files covering all of this so It's a slow process, but I'll get the rest of the base posted over the next few weeks.
  5. lostinlodos

    lostinlodos Well-Known Member

    Just a quick update for anyone who wants to read the original text of the DMCA without the amendments. For educational reasons, I've posted the FOIA link for the wikifoundation page, but keep in mind in reading that this has been heavily and drastically modified by later amendments as well as case-law.
    Last edited: Apr 7, 2008