Thu, 24 May 2012

Imagine a book store that sells you a book, but it's scrambled and cannot be read. Descrambling is a prerequisite to reading, but imagine there's a law making it illegal to do that.

This describes DVDs because they're encrypted with a form of Digital Restrictions Management ("DRM") called the Content Scramble System (CSS), and the Digital Millennium Copyright Act (DMCA) forbids both the tools to get around that, as well as the act of circumventing the DRM itself.

What about fair use? Surely making a copy to watch on your portable video player would be okay, right? You've already bought it so who's being harmed? Unfortunately, there's nothing in the DMCA that limits its reach. This results in an inability to decrypt the DVD under any circumstance. The courts have upheld this as well: People are found guilty just for "picking the lock" and thereby violating the DMCA, whatever their purpose was.

It is already legal for me to copy CDs to my portable music player. There's absolutely no question of fair use but if DRM is added that same task becomes illegal. By banning all acts of decryption, and all tools that can be used for that, it gives de facto control to the copyright holders to change the legal landscape.

It's not just DVDs. The chilling effect of the DMCA has already spread beyond them: You'll find DRM on downloaded music, ebooks, computer software, cell phones, and more. Bypassing it to reclaim your fair use rights has been made illegal, thanks to the DMCA.

Big Media would prefer you to think that the DMCA is necessary to prevent so-called "piracy" but there's no need to take the public's fair use rights away in order to do that. The recordings on a DVD are already covered by copyright restrictions. I think that the proper way to implement this law would be for the anti-circumvention provisions of the DMCA to apply only if what you're doing is also a violation of copyright. Some countries already do this. Anything more only serves to punish the innocent as well.

The DMCA has provisions for the Copyright Office to establish activities that are exempt from the anti-circumvention provisions. These rules are revised every three years, and some are pushing for exemptions to be added for DVDs and other things. If the effort succeeds it would be a small victory because the exemption would only last for three years. It would then need to be renegotiated and there's no guarantee of success.

Exemptions aren't enough. To establish lasting protection for our rights it's high time the DMCA be limited in scope to afford the public with the ability to make legal copies of the things that they own. The inability to circumvent copying restrictions under any circumstance is too broad and should not be tolerated.

In fact, don't. If you want to make a copy of something that you own then do it. Don't by stopped by the DMCA. The law is wrong and doesn't deserve to be obeyed. Think of it as a form of civil disobedience.

In the meantime, please write to your representative.