The New, Improved DMCA (or, Devil Went Down To Georgia, Came Back With Our Souls In A Leather ManPurse)

Good News! After years of lobbying by EFF and other freedom of information advocates, the Digital Millennium Copyright Act is being rewritten.

The Bad News? It’s being rewritten by Disney, Warner Brothers, and the RIAA.

The original DMCA altered the law’s understanding of copyright and technology in a radically new way. It placed the assumption of guilt on new technologies, and limited their development and distribution unless the developer could demonstrate that they could not be used to infringe on copyrighted material.

Let’s say I realize that my dance moves could use some updating. To this end, I buy a DVD of You Got Served, and watch it religiously for 3 months straight. When I buy that DVD, I have some inherent freedom in how I use that DVD. For example, I have the right to watch it as many times as I want. I have the right to make a copy of the DVD as a personal backup, in case the original gets damaged by excessive play. I have the right to load it into iMovie, and edit the video down to just the dance sequences, so that I don’t have to fast-forward through the hip urban-esque dialog every time I watch it. I can move 90 TVs into my garage, and make 90 copies of my edited version, setting them to loop continuously, so that my practice space becomes a Fakey Hip Hop total immersion experience.

All of these things are consider fair-use of the DVD that I purchased, under copyright law. I have the right to do these things with the Intellectual Property (and I use that term very graciously) license that I purchased with that DVD. What the DMCA did, however, was make it illegal for anybody to develop and distribute software that circumvents the copy encryption on the original DVD, so that I can actually do these things.

In other words, the owners of You Got Servedhave the right to encrypt their works in such a way that it prevents me from doing things that I am legally entitled to do with the DVD I purchased. It also makes it illegal for anyone to distribute technology that removes that encryption so that I can continue my perfectly legal activities. And, I suppose, it also makes it illegal for me to direct you to that link, so that you can do the same.

This is what I mean when I say that the DMCA assumes the guilt of new technologies. There are perfectly legal reasons to want to use a software like HandBrake to rip a DVD, but the DMCA doesn’t address the legality of final purposes for technology, it assigns legality to the technology itself.

I’m trying to think of what an appropriate analogy might be. There are illegal uses of a washing machine. I might, for example, use a washing machine to remove blood stains from clothing used to commit a crime. This is an illegal act, and the washing machine is the technology that I used in committing the illegal act.

Now suppose that washing machine manufacturers wanted to prevent you from using their product for this kind of illegal activity. Because they can’t figure out a way to determine your intent when you use the machine, they instead cripple the machines so that they will not work whenever there is blood on your clothing.

If your childhood was anything like mine, you know that there are perfectly legal reasons why you might need to wash blood out of clothing. So, you hire a handyman to come to your house to remove the device on the washing machine that stops it whenever blood is present.

Here’s how the DMCA would apply to washing machines – it presumes the guilt of the new technology (you must be using your washing machine to commit a crime), allows the manufacturer to prevent illegal activity in a way that also limits a vastly wide range of perfectly legal activities (no washing blood), and makes it illegal for you to bypass this limitation in order to pursue legal activities (the handyman is now a federal criminal).

The EFF has a fantastic look back at the unintended consequences of this law in the 7 years since it’s passage. It has limited scientific study, academic discourse, new technology research, artistic expression, and free-market competition, and not just in a vague, hypothetical way. It has actually limited real cases of each of these things, in substantive and specific ways.

So, why am I hashing this out now? Congress is considering a new rewrite of the DMCA. The new version gives the Justice Department new far reaching rights in pursuing Intellectual Property crimes, including wiretaps, seizure of property, and impounding of records documentation (think SBC server logs for all internet access). It also increases the penalty for IP infringement to 10 years in prison.

10 years.

Let me say it again.

10 years.

The current sentence for trafficking in child pornography is 7 years.

The current sentence for assaulting a police officer is 5 years.

The current sentence for unarmed assault is 6 years.

In other words, to paraphrase the UK news magazine The Inquirer, the penalty for illegally distributing a copy of You Got Served is 10 years. However, tracking down the director and pummeling him into a 7 day coma will only get you six years.

Our current copyright law is being held hostage. It is being written and enforced by those who have a financial stake in decreasing the common rights of a creative and free people.