DHS/ICE seizes domain names of torrent sites

[Hauldren Collider]

This is the Asher paradigm:

OMFG I AM OUTRAGED HERE IS A GENERAL CASE WHY!!!!

Other people: Refutation

OMFG WELL WHAT ABOUT THESE SPECIFIC CORNER CASES

Other people Refutation

TANGENTIALLY RELATED ANGRY VIGNETTES AND ANECDOTES

walking over covered ground

OKAY I RETRACT MY OVEREXTENDED STATEMENT AND RETREAT TO A SLIGHTLY MORE DEFENSIBLE ARGUMENT THAT STILL MAINTAINS AMERICA IS EVIL

[Asher]

This is the Asher paradigm:

OMFG I AM OUTRAGED HERE IS A GENERAL CASE WHY!!!!

Other people: Refutation

OMFG WELL WHAT ABOUT THESE SPECIFIC CORNER CASES

Other people Refutation

TANGENTIALLY RELATED ANGRY VIGNETTES AND ANECDOTES

walking over covered ground

OKAY I RETRACT MY OVEREXTENDED STATEMENT AND RETREAT TO A SLIGHTLY MORE DEFENSIBLE ARGUMENT THAT STILL MAINTAINS AMERICA IS EVIL

If you didn't admit in your prior post that you've no idea what you're talking about as you've not read the thread, you've made it clear now.

What happened was Wiglaf made a claim that is in direct contradiction to the actual law he's referencing. His support for that claim was a citation that a judge said, tangentially, it "may" be legal to make personal DVD backups while at the same time ruling it is illegal to make software to do such a thing.

I've since responded with reasoned, rational arguments as well as quoting the explicit exemptions in the DMCA, of which personal fair use backups are not included.

I've not at all changed my argument, I've not focused on "corner cases", and I've not responded with anecdotes (as opposed to you, who brought up a family conversation as defense).

[Asher]

I'm going to just say this because HC and Wiglaf can't even get this far: the basis for Judge Patel's comment about why it "may" be legal to make personal DVD backups is based on the word "effective" in the DMCA. The argument is that CSS is not an "effective" form of DRM as it is so trivially broken, so it is plausible that it is legal under the DMCA. This has NEVER been challenged in court, so it cannot be assumed to be the case.

Even if that was the case, it most definitely does not apply to Bluray or FairPlay DRM protecting HD video content (nor the XBLM DRM, PSN DRM, etc), only legacy DVD content.

[Wiglaf]

Just to be clear, I may be Hauldren Collider's father but I am not a communal DL.

Why don't you ask him about why the courts ruled Real Networks cannot make software to facilitate people making their own personal backups, if such a thing is so obviously legal?

RealDVD allowed copying rented movies and keeping them as well. If you could invent a product that somehow would only make a single personal backup for someone, and only for that person, then it would probably pass muster even if it broke copy protection. Hard to say since there's never been a case prosecuting someone for making a personal backup, which is why it's so puzzling you think it is illegal to do so.

[Asher]

RealDVD allowed copying rented movies and keeping them as well.

It made no such distinction between rented movies or owned movies. How could it?

But the fact that people can illegally use a legal product should not make that legal product illegal.

By this logic, we should outlaw broomsticks because they may be used to sodomize nuns in addition to their intended use to facilitate floor cleaning.

It is already illegal to "back up" rented content because they are not "personal backups". It makes no sense to start making devices to make personal backups illegal.

Why is it so hard for everyone to see the reason RealDVD was shot down was because the movie companies knew they'd get more sales if people could not back up their DVDs? They'd prefer it if you buy replacement DVDs, or buy a digital version to put on your home server instead of ripping your DVD. And the MPAA lobby is very strong.

Hard to say since there's never been a case prosecuting someone for making a personal backup, which is why it's so puzzling you think it is illegal to do so.

Why is it puzzling if it's spelled out quite clearly in the DMCA that this is the case?

The lack of enforcement for it doesn't change the fact that it is illegal.

[Wiglaf]

But the fact that people can illegally use a legal product should not make that legal product illegal.

Certainly makes my MAC-10 illegal. (Even sans silencer)

[Asher]

Certainly makes my MAC-10 illegal. (Even sans silencer)

Yet you're still allowed to buy knives, handguns, etc.

I was unaware that you supported a nanny state that prevented people from owning products that could potentially be used illegally. It would not surprise me if HC supported this (given his penchant for appealing to authority), but you...?

[Wiglaf]

It's not clearly spelled out in the DMCA.

[Asher]

It's not clearly spelled out in the DMCA.

Circumventing DRM is explicitly illegal except for a very specific list of exemptions.

Personal fair use backups are not included in this exemption list, despite multiple opportunities to include them there.

So yes, it is clearly spelled out.

[Asher]

http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00001201----000-.html

Read the law.

TL;DR version:

(a) Violations Regarding Circumvention of Technological Measures.—
(1)
(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

...


(2) As used in this subsection—
(A) to “circumvent protection afforded by a technological measure” means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and
(B) a technological measure “effectively protects a right of a copyright owner under this title” if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.

This is quite clearly a blanket statement saying bypassing DRM is illegal.

In the full law (linked above), it lists the exemptions (education, research, critique,etc). There is no exemption for personal fair use backups.

[giblets]

If Wiglaf could explain what that part of the law means if it doesn't mean that bypassing DRM is illegal, that would be great.

[Kuciwalker]

Fair enough, but

1) I think you underestimate the value of rhetoric (I have no evidence to back this up)

2) That doesn't change the fact that these censorship attempts are going to be either ineffective or gross violations of civil liberties.

[Asher]

It turns out there actually IS a precedent here...showing fair use is NOT included in the DMCA:

http://en.wikipedia.org/wiki/Universal_v._Reimerdes

The ruling stated, and this is a direct quote:

[i]f Congress had meant the fair use defense to apply to such actions, it would have said so

Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 322 (S.D.N.Y. 2000)

Coincidentally, I said essentially the same thing.

This ruling was made SPECIFICALLY in ruling deCSS illegal (which was the first tool to circumvent DVD copy protections to make rips). It was also the very first DMCA challenge.

The ruling was also appealed, and upheld in the appeals court.

[Wiglaf]

Please stop being disingenuous and get rid of the bear humping avatar. The end of the entry (which I assume you will now frantically delete while jizzing uncontrollably) makes it clear the issue was redistribution, not personal backups.

A personal backup doesn't circumvent a measure that protects the rights of the copyright owner. A personal backup program used to circumvent a rented movie's DRM, by contrast, would.

This is what the courts are for.

[Asher]

Please stop being disingenuous and get rid of the bear humping avatar. The end of the entry (which I assume you will now frantically delete while jizzing uncontrollably) makes it clear the issue was redistribution, not personal backups.

A personal backup doesn't circumvent a measure that protects the rights of the copyright owner. A personal backup program used to circumvent a rented movie's DRM, by contrast, would.

Are you so remarkably stupid that you don't understand transitivity?

I'm going to state the simple facts one more time.

The DMCA simply makes bypassing any DRM explicitly illegal. There is no exemption for personal fair use.