The Digital Millennium Copyright Act (DMCA) was first passed back in 1998, at a time when the term “jailbreaking” did not even exist. It was passed mainly to prevent bypassing of Digital Rights Management technology. Back then, it was also established that DMCA could have its own exemptions. Yesterday, a new set of exemptions were announced for the DMCA, which will come into effect on October 28, and will continue to be valid for three years until 2015.
These exemptions announced by the DMCA are extremely arbitrary, and their poorly defined scope undermines the premise of having DMCA in the first place. Ars Technica puts together these discrepancies as-
The new batch of exemptions illustrate the fundamentally arbitrary nature of the DMCA’s exemption process. For the next three years, you’ll be allowed to jailbreak smartphones but not tablet computers. You’ll be able to unlock phones purchased before January 2013 but not phones purchased after that. It will be legal to rip DVDs to use an excerpt in a documentary, but not to play it on your iPad.
Apparently, Tablets were excluded from jailbreaking because the definition of tablets is too broad at the moment. The deadline of January 2013 for unlocking phones has no explanation as well, but the most disappointing news from this exemption list is related to unlocking of smartphones.
Jailbreaking of phones was already legal according to the DMCA. However, according to this revised law, phones cannot be jailbroken anymore without the permission of the carrier. DMCA’s argument against unlocking was a comparison with software purchase, which says that you are essentially licensing the software for use according to the EULA, but you cannot claim ownership on the software.
If DMCA can be so flexible that it takes concepts of software purchase and applies them to hardware purchase, how is it so rigid to allow the same freedom on one device, and take away that freedom on another?
Automated DMCA takedown notices is nothing new and almost all copyright holders use some sort of an automated DMCA takedown request system to do the dirty work for them. However, the fun starts when these automated systems go berserk. Recently, Microsoft started sending rogue DMCA takedown notices through its automated takedown system, which had developed a fondness for the number 45.
Microsoft has already asked Google to censor over 5 million web pages over the last year. Stupid as it may seem, the recent failure in this automated DMCA system has raised mayhem. Google has been asked to censor reputed websites like BBC, CNN, The Washington Post, TechCrunch pages, multiple pages from Wikipedia, Rotten Tomatoes and the bummers — the US Government’s Environmental Protection Agency website and Science Direct volume 45!
Claiming to prevent the unauthorized distribution of Windows 8 Beta the software company listed 65 “infringing” web pages. However, nearly half of the URLs that Google was asked to remove from its search results have nothing to do with Windows 8.
Google has its own control measures in place against these blatant takedown notices. It maintains a whitelist of websites like Wikipedia and BBC, which are protected from these rogue takedown notices. However, the lesser-known websites have taken a hit.
DMCA was born over a decade ago, and it has restricted illegal copying of copyright work successfully. However, it has also created an anti-competitive world where people use DMCA takedown notices as a tool to annoy competitors or in this case where an automated tool is being allowed to determine the fate of popular websites. There should be some accountability involved in DMCA takedowns, as this automated DMCA takedown ecosystem is clearly killing the Internet.
Canada has planned on releasing a revised copyright modernization bill for too long and finally, the suspense is over. The bill has been passed and should get overwhelming response from software pirates and anti-DRM activists all over the world.
The new bill has legalized bypassing of DRM and has created many loopholes which can be easily exploited to create legalized copies of protected material. CD copying is now legal given you own the original source. Infringement damages have been slashed to one third. This comes as a relief against the last bill which was blamed to have been created “in the image of the US DMCA” and enforced stricter rules.
We had covered the notice and takedown policy of DMCA in the US. However, in the Canadian version, we instead have a “notice and notice” system. This move protects the ISP from being harassed by the authority issuing the takedown and getting involved in the case. The ISP only needs to forward a copy of the notice to the website and the dispute stays between the two ends without involving the ISP.
Finally, this is just a bill and there is time before it is made into a law. It is sure to undergo heavy amendments under pressure from the tech industry and it will be interesting to see what form it takes finally.
If the DMCA style notice and takedown (prevalent in the US) was not enough, an Irish ISP has now started walking those footsteps by banning file sharers. The Irish ISP Eircom will begin a three month program in which they will track down and hunt file sharers.
The IrishTimes writes,
Ireland is the first country in the world where a system of graduated responseis being put in place. Under the pilot scheme, Eircom customers who illegally share copyrighted music will get three warnings before having their broadband service cut off for a year.
This system sounds overtly lenient and allows file sharers to walk free even if they are marked and caught. Not only this, if they are found guilty of three such offences, their internet connections will be blocked only for a month!
Dtecnet, a company working with the Irma (Irish Recorded Music Association) has decided to provide Irma with a list of 50 IP addresses per week over three months. Any IP which is found guilty will be issued appropriate warnings.
This does not at all sound like a full proof plan but can mark a beginning. Let us hope Ireland is free of illegal file sharing soon.
Brazil is making serious amendments to its DMCA policy. Under the new rules, a notice-and-takedown system will be hugely revised so as to safeguard third parties content.
The DMCA that is in place in the US is pretty rigid and requires almost all takedown notices to be adhered to. This system can easily be abused. Brazil has been following a similar system but now, it is out to change this.
The new system that is in place allows service providers to take down only the offensive content, that too only on a court order. You can read the proposal here. This provides some assurance against hate-groups who could earlier take down websites issuing baseless takedown notices.
Eric Goldman gives his expert opinion on this saying,
According to the new system, online service providers are only liable for third-party content if they do not comply with a takedown order issued by a court of law. In addition, the proposed notice and takedown system is completely gone: instead of a simple request from the alleged victim, a court order will be mandatory to take down alleged harmful content, requiring a prima facie analysis of said content by a judge.
This seems far more reasonable as compared to what the US still has. Though, we are expecting that things will change once Brazil implements this.