May 1, 2013 • 46 mins
Why does the DMCA exist? What is safe harbor? What does the DMCA have to do with boats? Tune in to learn more with Jonathan and Lauren.
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Episode Transcript
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Speaker 1 (00:04):
Get in touch with technology with tex Stuff from how
stuff dot com. Pathan, everyone, and welcome to text Stuff.
I'm Jonathan Strickland and I'm We're going to talk about
a super fun topic today. We are both repped up.
It is the d m c A, the Digital Millennium
(00:27):
Copyright Act of nineteen Yes, uh yeah. The reason we're
covering this, obviously is because the d m c A
is one of those things a lot of people cite,
uh in various uh discussions online, things about you know
what what pertains to copyright law of that kind of stuff,
and we thought it might be helpful to actually go
(00:47):
through and talk about this this what it actually is,
what it actually says, and some of the ways that
it has interacted with with us in in the real world,
the hypothetical real world that I keep hearing about and
don't actually we see all that often. No, that's because
we play a little halo. But yeah, now they the
the whole reason we're tackling this again is that it's
(01:09):
it's you know, when we talk about piracy, and we
talked about copyright, and we talk about intellectual property and
safe haven. Most of that has to do with the
various copyright laws, at least here in the United States
that we have several copyright laws, but a lot of
it refers back to the d m c A. And
the reason why the d m c A is even
a thing is because once we started entering the digital era,
(01:32):
the landscape changed dramatically. All right. So before the digital era,
when everything was analog, you could make copies of stuff,
but it tended to be uh slow. It tended to
take a lot of effort on the part of the
person making the copy. It was not easy for your
average person to make a copy of something and then
distributed it right for you, you know. For for example,
(01:54):
before digital books, in order to make a copy of
a book, you had to either um, you know, put
it on a copy machine, or in olden days, break
into a printing press room or hold hold some monks
at crossbow point and say illuminate the script faster. Um. Yeah,
it was not easy. And so while there were protections
in place to keep intellectual property under the the ownership
(02:18):
of the person who created it or the entity that
owned the rights to it, because of course we all
know the copyright holder is not necessarily the person who
actually made yes, but anyway, there were laws in place
to protect that property. But you know, the it was
pretty easy to combat the any sort of piracy just
(02:38):
because it was it was a lot of trouble to
pirates stuff. Uh. You know, I can remember back in
the day when I was a little kid occasionally using
a cassette recorder to copy a song that was playing
on the radio. So yeah, okay, so right. But but
until right until U cassette's both video and audio came out,
(02:59):
it wasn't so much an issue. No, no, And and
in fact, the various industries that have an interest in
distributing and producing and distributing media very much opposed things
like cassettes and video tapes. But eventually the government said, no,
the benefit of this outweighs the the potential threat to
(03:21):
your industry, and in many ways they were They were
very much right, because again it just was not easy
to circumvent that stuff. But once we get into the
digital era, now you're talking about the ability to take
information zeros and ones is ultimately what we're talking about here.
You could take information and you can make copies of
it relatively easily and distribute it relatively easily, especially once
(03:44):
the Internet internet became so now now we're in an
era where you could have a book published and someone
could take a digital version of that book, strip away
any sort of copyright protection that happens to be there,
and distribute it freely to whomever they like. And obviously
the various publication industries, music industries, movie television, all that
(04:05):
kind of stuff, they were very much concerned about this,
and and rightfully so, because if it is easier to
get at the material by pirrating it than by buying it,
that's what people are gonna do. Well. Sure, and there
there's a little bit of contention about that, you know,
studies and pretty informal studies as if you have the
people have done about how being able to preview something
(04:27):
for free actually increases sales on that paid object. Sure,
but there's there's a lot of anecdotal evidence that says
that pirates tend to buy more stuff than anyone else does.
So in other words, like a pirate will will download
a torrent of a movie or a television show, really
enjoy it, and then go out and buy a copy
(04:47):
of it because they want to have that legitimate copy.
Has all the bells and whistles, right, Although publishers are
starting to take steps these days, you know, and letting
you preview more and more of songs online or or
or access and things or something like Netflix, so that
you can really check something out and see it's something
that you're interested in purchasing before you right, and Amazon
has a lending library. So but all of these things
(05:08):
are kind of subscription based, so you're still paying into
a system. It's just now you're you've gotten a lot
more options instead of just I want to buy this
site unseen and hopefully I will like it. But anyway,
so the d m c A was was this series
of tweaks to existing law in the United States, and
itself was not just a brand new law. It was
(05:29):
really to add amendments to existing law in the US,
and it was trying to bring US law into alignment
with world the world intellectual property treaties from two of
them in particular, one called the Wipeo Copyright Treaty and
one called the Wipeo Performances and Phonograms Treaty. And so
(05:51):
this was also to kind of help make a united
front and on the global scale of copyright holders versus
the evil, nasty, horrible pirates who are going to destroy
everything from within. Yeah, those those WIDEO treaties were introduced
in n six seven. The d m c A was
(06:11):
originally sponsored by Republican Howard Koble of North Carolina in
the US House. Yep and uh. And it went through
several revisions, a few iterations that ended up adding some
interesting things which we will get to. Um can't wait
to get to it. I am just chomping at the
bit to get to the end of this podcast. It finally,
(06:32):
it finally passed in October when then President Bill Clinton
signed it yep, signed into law. So let's kind of
start talking about what is actually in the d m
c A. It's divided into five titles or five sections,
and the first two titles are the ones that have
the most interesting content from where we are, so we're
(06:55):
gonna we're gonna really constrain those first two titles, but
don't worry, the other three will get covered because title
five is a doozy alright. So title one, this is
from a summary of the d m c A. So
I'm gonna just read the little blurb verbatim. The white
bo copyright and performances in phonograms Treaties Implementation Act of
(07:18):
implements the White bo Treaties, and so it amends US
law to provide appropriate references and links to the White
Bow Treaties. It also prohibits their convention of technological measures
used by copyright owners to protect their works, such as
dr M. That I added these such as DRM. By
the way, that's not in the original language. It is
very important. Yes, adds civil remedies and criminal penalties for
(07:39):
violating the prohibitions. So, in other words, this is the
part of the d m c A that makes it
illegal to try and get around copy protection. So if
that copy protection is something that's physically part of a
device that plays digital media, or if it's something that's
within the digital media itself so software based. Uh, this
(08:00):
by by the definition of the d m c A
illegal to circumvent that in any way unless unless there
are certain circumstances in play. Right and its specifically UM
covers unauthorized access, but not unauthorized copying only for fair use.
Right unauthorized copy is still covered if it's not for
(08:21):
fair use. So that that raises the question what is
fair use. Fair use is this concept where you are
allowed to use someone else's work, some other copyrighted work
in very specific specific circumstances, such as if you were
providing commentary about that work. So let's say, for example,
that Lauren and I wanted to take something that had
(08:45):
been published and copyrighted. Uh, and it's about technology, and
we wanted to really critique it and explain it and
explore it and and add to it with our own
point points of view. Uh, And we wanted to quote
an entire page of that work. Well, as long as
we're doing it responsibly, and we are actually providing commentary
(09:05):
that adds to the discussion, as long as we're not
just broadcasting this back out at you for free, whereas
normally you would have to pay to get it. As
long as you know we're adding enough to it to
make it fair use, Yeah, that would be fair use.
And so you'll you'll often hear people say, oh, like
with music, you could play about fifteen seconds of music
and then that's fair use. No, there is actually not
(09:27):
a definition of how much work you can quote or
play that remains free. Like your your your intent and
your ability to make money off of the product is
definitely in a lot of consideration. The consideration here. For
for example, there was a case in two thousand seven
Stephanie Lens versus Universal Move Music Corporation, which was really interesting.
(09:51):
I'm kind of cutting into the middle of the meat here,
but but I wanted to bring this up. We're talking
about fair use because this was a This was a
woman who uploaded a picture of her thirteen month old
baby dancing to princes let's go crazy onto YouTube, UM
have fun times for everybody, right. It was a twenty
nine second clip, and Universal told YouTube to take it down.
They said, this violates copyright law. She did not ask
(10:13):
for permission to Prince to to use that song. Take
it down. They did take it down, and she she
soon Universal for UM legal fees to contact YouTube to
get it back up, and also for just just messing
with your life, and and and and the judge ruled
in that particular case that that it was fair use,
and that also UM companies really do need to check
(10:36):
that fair use isn't being broken before they ask for
content to be removed. Yeah, you'll often hear about that too.
I mean, there's a I don't I didn't write down
this particular instance, but I know for a fact that
it happened because I know some of the people who
are involved. UH this Weekend Text Tech News Today, Uh,
The The That's a show that's done with Sarah Lane,
(10:57):
Tom Merritt and i Azactar Leo Reports Network. They did
a a show that at one point they were talking
about a video that was also a copyright of work,
and so part of that their show is both an
audio podcast and a video podcast. You can get it
in either format, and the video podcasts also get uploaded
(11:19):
to YouTube. YouTube ended up taking that one down when
they got a request from the owner of the video,
even though it was very much evident that this was
a case where it was fair uses in play because
they were providing commentary about the video itself. They weren't
just playing the video. It was all about uh, really
(11:39):
analyzing it and talking about it in a way that
was was transformative. And uh it took quite some time
to get that turned around. On YouTube's defense, I will
say that if they don't act quickly, bad things can
happen to YouTube. But we'll get into that. That's a
little bit later into the m c A. UH title
(12:00):
one also covers some other stuff. One thing it says
is that if you are talking about public domain public domains.
Another thing we need to talk about public domain is
when you have a work that has existed longer than
copyright protection will cover that work. So it varies from
(12:22):
country to country. So, for example, let's just say what
will make a hypothetical example. Let's say that a country
protects any copyright of work for twenty years. After a
work has existed for more than twenty years, it enters
into the public domain, meaning anyone can use it any
way they like. You can publish as many you could
take that work. You could print out your own copies.
(12:43):
You could distribute them freely. You could run down the
street laughing like a maniac and chucking copies at people's heads.
Uh that sometimes around band booked week with with Mark
Twain properties for example, you could get arrested for some
form of assault and battery that way, but you won't
be arrested for distributing copyright at work. Because it's in
the public domain. You can do whatever you like with it. Again,
(13:05):
the amount of time that a work exists before it's
in public domain varies by country to country, and in
the United States, for example, that number keeps going up
because we have some pretty powerful people who are saying like, no, no, no,
we we really want to keep snow White for example, Yeah,
even though it published in there's a certain mouse that
(13:25):
has had a large amount of influence on this particular subject. Yeah,
it's very true. Disney has been very active in keeping
uh you know, adding more years to what would be
considered copyright. And then there's the question of well, can
we transfer it so that, uh, even after the copyright
(13:45):
holder has passed away, or maybe the company turns into
something else, like, can we keep it so that those
rights continue can be transferred to the next Yeah. So
so there are a lot of issues with that. Well,
the title one of dmc A tells us that the
the rules about public domain revert to the country of
(14:06):
origin of that work. So if the work was produced
in uh, say, France, then whatever France's rules are for
public domain would be in play no matter where else
in the world you might be, or well, in this case,
in the United States, because DMC only covers the US. Clearly,
right right in the United States, is not adding jurisdiction
of the entire world here. They are not. However, an
(14:28):
important part of that title one is that um. It
names the US as a member country of of WIPO,
and it really and says that it provides equal protection
to any other member country of WIPO in the United
States any any work from Yeah. So in other words,
it's supposed to apply the same rules and same rigor
h for any copyrighted work that's under threat from a
(14:49):
WIPO country as it would for anything that's from the
United States. So no preferential treatment for US versus non US.
And also with this public domain issue, you defer to
the rules of the country of origin. So whichever country
produced said work, that's the rules that apply for public
domain UM and uh the the whole unauthorized access versus
(15:12):
unauthorized copying. There are some exemptions that are allowed, but
they are pretty specific. For one thing, law enforcement, intelligence
and other governmental agencies are exempt from Title one, so
uh the you know, the FBI doesn't have to worry
about following these rules that kind of thing. Other exceptions
(15:33):
apply to nonprofit library, archive, and educational institutions that wish
to obtain authorized access to works. So again, uh the
access still has to be authorized. They can't circumvent and
they can't do it i'll will and nilly, they have
to ask, right, but they can make copies if it's
for archival purposes. So in that sense, because I remember
there's two sections here. There's the access and then there's
(15:55):
the actual copying, because there's been a lot of questions
about that, UH, and and the about the you know,
making things like a gadget that could circumvent uh, the
access block part that's illegal. But but creating a gadget
that can get around the copy protection is not illegal.
(16:15):
It's just the access part that you have to worry about.
And again it's not illegal, but you have to use
it in very specific circumstances to not get in trouble.
Other exceptions include reverse engineering for computer programmers. So if
you're trying to make a computer program that can be
interoperable with an existing program, then you can start making
(16:36):
copies of the existing program in an effort to learn
how it works so that you can make sure that
your new software works seamlessly with the old software. That's
really what that was there to protect. Encryption research is protected,
so UH, if your work is designed to analyze, evaluate,
and improve encryption technologies, you're protected also for the protection
(16:56):
of miners. So if there's any technology that's designed to
limit access to materials that you know are considered to
be harmful to minors, but it would otherwise violate part
of Title one, those are exempt from the Title one
issues as well. And then there's personal privacy, which is
if the technology that was used to protect a work
would gain or disseminate unauthorized information about a quote natural
(17:20):
person unquote, it can be circumvented. So if you were
to put DRM on something and that DRM, as part
of what it does besides protecting the copyrighted work, would
also gather information about you, you can you can then
circumvent because because they consider that the dissemination of the
private information is worse than circumventing the DRM. And finally, UH,
(17:44):
security testing is also exempt from this. So uh yeah,
any devices that are primarily designed or produced to circumvent
h copyright protection, uh, that have only limited commercially significant
purpose or use other than to circumvent or are marketed
for use in circumventing our big no nos under Title one. Yeah,
(18:08):
this is this is some interesting stuff. So again, really
it's the access that's the big deal here. Copying. Copying
is still a problem. You know, you can't just copy
like crazy. You have to be able to justify it
under those rules I was talking about. But the access
is definitely a big issue. So in other words, if
something is behind a paywall, you can't circumvent the paywall
(18:31):
to get at the stuff, because that's talking about access. Now,
if you if you don't have a paywall, if you
can freely access it um or you've paid to get
through it, then making the copy, that's more of a
question of do you fall under one of those exemptions?
Right right? Uh? It does also say maybe you were
getting to this one, but I thought that this one
was particularly interesting. It does. It says that it does
(18:53):
not and will never mandate that the design of products
be be such that they specifically prevent the creation of
devices made to circumvent themselves. It gets a little little
complicated and timey wymy wibbly wobbly, doesn't it um, It does,
But but it's really to protect companies and say say
that if you're designing products, then it's not your problem
(19:15):
if someone creates something that can circonvent it. One other
thing that title one covers. It actually says that the
provision prohibits rights holders, meaning people who own copyright to material.
It prevents them from applying the copyright prevention or copyright
circumvention prevention technologies to free television and basic and extended
(19:37):
Basic tier cable broadcasts, meaning that you can't put copyright
protection on stuff that is freely distributed in any way.
So you could not put some sort of copy protection
over over the air broadcast because of the very nature
of how it's distributed. Okay, so so share So, so
if you wanted to record something that was airing on PPS,
(19:59):
then do it. You could do that. Yeah, anything that
was on any sort of over the air transmission, you
would be you would It doesn't fall fall under the
umbrella of d M c A as as opposed to
a lot of other digital transmissions or cable transmissions that
which are here. Here's another thing, like, if that same
same program that you would have gotten over the air
(20:21):
on an antenna and you want to record it on
your your home system, if it's perfectly okay under that circumstance,
it's not perfectly okay if that same program is being
distributed over the internet. Interesting, huh, Because it's two different
means of distribution. It has nothing to do with the content,
has nothing to do with whether or not it's in
their copyright, has everything to do with the method of distribution.
(20:43):
What a crazy world we live in. Do you have
anything else to say about title one, Lauren, anything else? Um?
Because it gets crazier from here on out. It does
get crazier. Now. There's a lot of interesting court cases
that have come up about what it means to be
an owner versus a life and see versus a user
of any of these pieces of media, especially one case
(21:06):
in two thousand seven Timothy S. Verner versus Autodesk, and
Verner sued Autodesk because he had been buying all of
the software from garage sales and selling it on eBay
and um some of that. One of these things that
was included was a program called autocat, owned by Autodesk.
It's a computer assisted design sure um. The user agreement
(21:29):
in in AutoCAD says that it's you are a licensee
and that your license to use this as non transferable.
So whoever buys it, that's who. That's But Verner said
it wasn't his fault that someone had sold it to
him at a garage sale and that he should therefore
have the right to sell it on eBay, and an
Autodesk said not. And that is interesting. I mean, what
(21:51):
do you do because the person who sold it, the
too verner, as essentially the one who's violating that licensing agreement, right,
But but the courts, the courts upheld out at desk.
They said, they said, no, because you have entered into
a legal agreement period, you are responsible for what you do.
It's weird. I would have said that the person who
(22:13):
entered the legal agreement was the one who originally bought
the software, not him, because if he bought it from
a garage sale, he did not clearly buy it from
any retailer that was Autodesk. So it's interesting to me,
not that I'm contesting what you're saying, but it's interesting
to me that the court would say that because you know,
they basically ruled that he was never a legitimate owner. Okay,
(22:37):
got so, So therefore, because he's not a legitimate owner,
he cannot be a reseller. Cannot be a reseller. Christ
you know, this is one of those things where it
kind of it's it brings up that whole idea of
the right of first sale which is, if you buy something,
then you have the right to sell it off to
someone else. The digital era has really changed that as well,
because you can sell something that's digital and that that's
(22:58):
the entire that's the entire you that I'm talking about
with license c R a user versus an owner. Right, Well,
I and you can understand autodesks point. They might say, well,
how can we be certain that other than you know,
through registration, how can we be certain that the copy
of the of AutoCAD has been white from all the
computers that the original owner had. So if I bought AutoCAD,
(23:23):
hypothetically the key wouldn't work, yeah, right, which again, uh,
the problem is that there are programs out there that
will generate new keys. Yeah, so you can circumvent it,
which you're not supposed to do. But yeah, so this
is interesting. That's interesting that it goes all the way
down to selling stuff on eBay, right. Yeah. On a
(23:44):
grander scale, this is the same kind of issue that
has to do or or title one anyway has to
do with why unlocking your cell phone is illegal, Because
disabling the DRM software in a cellphone that that locks
it to a single carrier is illegal. So you can
jail break your phone, but you can't you cannot unlock it. Well,
(24:06):
you're you're you're allowed to. You're littled to jail break
it to install software, but not unlock it for moving
it from one to another. And this is a thing
that once every three years, the Library of Congress sits
down and reviews complaints that people have submitted to them
about various bits of legislation and dan law. And during
(24:29):
one of these, uh, one of these tricycles what are
they called, try any ill trannial reviews? I like tricycles better.
During during one of these tricycles recently, the Library of
Congress um up help this that that, yeah, that jailbreaking
to another network is not legal because and I do
not quote, but this is the gist of their argument.
(24:49):
There are so many devices on the market these days
that surely you can find one on the network. Blame
the victim, why don't you? Wow? I definitely feel a
sting on this one. But then again, I bought my
phone unlocked already, because I bought a phone that was
designed to be unlocked, so that you could buy it
and then put it on whichever network that's still legal.
(25:11):
By the way, companies can choose to offer up an
unlocked device. You just cannot take a device that has
been locked and then unlock it. Yeah, there's a there's
a bit of authorization again in this issue. Yea. So well,
you know what, there's a lot more to talk about
with the d m c A. But before we do,
let's take a quick moment to thank our sponsor. Alright,
(25:34):
getting back into the d m c A, we're ready
to move on to title two. And I know some
of you are thinking there are five titles here, how
long is this going to go? But really, titles one
and two are the big ones, and the other ones
are well, you know, we'll touch on them, but they
won't be quite as extensive. So Title two is the
Online Copyright Infringement Liability Limitation Act, which creates limitations on
(25:56):
liability for online service providers for copyright and fringement when
engaged in certain types of activities. So this is of
course where the term safe harbor comes from. Is this
title too of the d m c A. So safe
harbor is essentially this idea that if you are an
online service provider, and that could be anything from an
Internet service provider, you know, an I s P to
(26:17):
a platform that people use on the internet, like like Tumblr, YouTube.
Yeah exactly that if you provide that service, you are
not necessarily monetarily liable for any sort of copyright infringement
that's being performed by the users of your platform. But
there are again very specific rules in play. It's not
(26:39):
that you're a given free license. You can't just sit
there and say safe harbor, safe harbor, I'm okay. You
have to actually, uh, you know, show that you are
one unaware that the stuff is going on, and too,
you cannot be benefiting from the fact that infringement is
going on, right And and furthermore, if a company contacts
you and says, hey, this thing is on your site,
(26:59):
it's it's it's copyright infringement, please take it down, you
have to do that. You have to respond very quickly.
And that's one of the reasons why we see these
these things happen where YouTube will pull something very quickly
because they have to under the rules of d m
c A if they received that notification. I mean, there's
probably several big cases against YouTube that are all about
(27:21):
copyright infringement. Viacom has a huge case, which is which
is still going on, that was filed in two thousand
and seven of our contention of hundred and sixty thousand
clips that had been viewed fIF one point five billion
times um and and they were basically saying YouTube you um,
I'll quote from it. Because YouTube directly profits from the
(27:42):
available availability of popular infringing works on its site, it
has decided decided to shift the burden entirely onto copyright
owners to monitor the YouTube site on a daili or
hourly basis to detect infringing videos. So Viacom saying, hey,
this should not be our job, and YouTube saying, hey,
it shouldn't be our job either. There's seven two hours
worth of material being uploaded every minute. There's no one
(28:04):
who can sit there and go over every single frame
of every single video that's always being submitted to this service. Um.
And that's basically what the court said. They threw it
out without even being tried in it came back actually
in April, there was a reversal. The the court said
that basically a reasonable jury could have found that that
(28:27):
YouTube was aware of what was going on and just
not taking steps right. Yes, and and that's that's one
of the things under d m c A is that
if the the service providers aware of it, they have
to take steps to prevent it. Now again, if it's
something where it comes under fair use, that's where it
gets money. Again. Yeah, because I mean, like it's it's
not it's not YouTube's job to determine what is fair
(28:49):
use and what is not, uh, and the up the
the copyright holder is supposed to at least take the
into consideration before taking steps. But ultimately, fair use is
something that's decided in a court of law. I mean,
you know, it's it's it's all down to does the
copyright holder want to take the steps to actually uh
prosecute someone, and then the court decides if it was
(29:12):
fair use or not. That's that's the real problem with
fair use is that it's really something that's decided after
a court case. Um if it if no court case happens.
So if a copyright holder never comes after you for
the way you've used something, you could argue that's because
it's fair use. But legally speaking, that's not the determination.
It's just that no one came after you. That doesn't
mean that they won't come after you some time in
(29:33):
the future. This is the fun part of copyright law, right,
So let's talk about some of the things that that
the limitations on liability cover for copyright infringement this whole
safe harbor idea. One of them is transitory communications. Now,
this limits the liability of a service provider when all
the provider is doing is acting as a data conduit.
(29:55):
In other words, all they're doing is allowing information to
pass from one entity to another entity. They're not they're
not taking part in whatever the content is. Uh, They're
just essentially they're the pipes. And if you are the
one who owns the pipes, you cannot be held responsible
monetarily for any copyright infringement material that passes along there
(30:15):
as long as you are not complicit in that transaction. So,
in other words, if you're a service provider and you
are not knowingly providing people the chance to send copyright
infringed material back and forth, or you're not profiting from it,
then you're not liable. But if you're profiting from it,
then there's a problem. And that's one of the things
(30:36):
against YouTube is that if YouTube is running ads against videos,
then that means, yeah, they're profiting from those videos. So
if the videos are videos that infringe upon something, then
there's there's a case there for d m c A. Now, granted,
most of the time, the first step is still saying
take this down, and if YouTube does that, that's usually
as far as it goes. But it's something to keep
(30:58):
in mind. Next, have system caching that limits the liability
of a service that retains data to send it later
at the sender's discretion. So there are a lot of
different ways of thinking about this. But imagine that you
have scheduled something to post at a particular time. Well,
a copy of that information maybe existing on a service
provider's site. But uh, what you're saying is that if
(31:20):
that materials copyrighted and it's unauthorized, it's an unauthorized copy.
The system cannot be held responsible for holding that copy
because they're really just fulfilling their end of a service. Again,
same rules apply. They can't be complicit, they can't be
profiting from it. Uh. Storage of information on systems or
networks at direction of users. Same sort of thing. You
(31:41):
have cloud storage. If if I have a cloud storage account,
and the you know part of that is that I
am trusting that my provider is not snooping in on
all the stuff that I'm storing on my cloud storage.
Then you know, you can't hold the cloud storage company
responsible if I'm filling up my storage with you know,
(32:01):
it can't be expected to look at all every single
one of the files. When I put put my unauthorized
discography of Britney Spears up there, they can't. You know,
they're not held responsible for it. I should definitely hold
responsibility for something like that if I were to ever
do that, and I fully expect to be held responsible
and also will never happen. Uh. Then there's the information
(32:22):
location tools. So this is things like search engines. So
if you were to type in something in a search engine,
for example, you were interested in a particular television show,
let's say I don't know Supernatural, and you were to
type that in and some of the links that came
back linked to things that were infringing copyright, the search
engine would not be held responsible for those links unless again,
(32:46):
it was violating those other rules. So in other words,
you can't blame Google for putting a link up to
material that infringes upon copyright because Google is not the
one responsible for the material. It's just all it is supporting.
It's just indexing links, that's all it's done, although it
does do so with ads, So that makes me wonder
if there's any kind of any of that sticky there.
(33:07):
That's probably another issue. But again, and they're also told
that if someone reports it, they are supposed to block
access or take those links down. That that's raised a
lot of ire in the various communities online about the
idea of blocking links because it's talking about essentially breaking
one of the fundamental parts of the Internet, or at
least of the Web, if not the Internet anyway, that's
(33:30):
a different discussion. Uh those are the four main areas
where the liability is limited. Um. They also, it says
section five twelve, which is the specific section of the
uh the law that this uh the suppresses. Yeah, it
says it also contains a provision to ensure that service
providers are not placed in the position of choosing between
(33:53):
limitations on liability on the one hand and preserving the
privacy of their subscribers on the other. So, in other words,
they are not supposed to be put into any kind
of position where they have to identify someone when part
of their business is all about hey, your private and
respect of privacy. Yeah, so they are supposed to be
(34:13):
allowed to remain free of that. Uh, but that even
that has some issues so like. But essentially this is
to to make sure that they remain in compliance with
things like the Electronic Communications Privacy Act. So in other words,
you're talking about there are two different laws here that
kind of conflict with one another, which one has precedence
(34:34):
in this case, the privacy holds up over the copyright violation. Uh.
And really the reason why this whole section exists is
to prevent companies from having to undergo massive amounts of
expenses to defend themselves or also to endure excessive interference
from copyright holders or from government officials. And uh so
(34:57):
you know, the fact that this d m c A
stuff is in a way, it's you could you could
see it as a way of bending to the will
of copyright holders. That's the way a lot of critics painted, right,
like the d m c a A is just the
government laying down in front of copyright holders. Right. But
but this one, this one really actually works in the
(35:18):
other direction in the favor of the service provide the
service providers who are just just trying to do their
jobs and are not necessarily There was a case in
two thousand six Io Group felt a complaint against Vieo
Networks for Vo Networks had a site that would let
users transcode video into flash. Okay, sure, and and I
a group was saying that View Networks users were trans
(35:42):
transcoding videos into flash that that were copyright infringement. Okay,
So that they were taking videos that were under copyright
and through the process of transcoding them that was violating
the copyright. Yes, And they said that They said that
Vo was responsible for this because as as a transcoder,
they were they were implicit and they were they were
(36:03):
actually they were giving the people the ability to infringe
just from the very nature of what the service was.
And the court ruled that that the process was automated
and that therefore VO had no knowledge and like they
could not know what the content was because the actual
process of transcoding had nothing to do with a human
being reviewing stuff and saying, hey, wait a minute, it was.
(36:25):
It was really good, but a really important, clear cut
case to prevent that kind of legal actions from being
taken in the future. That makes a lot of sense,
because I mean, YouTube had for a long time was
always encoding videos into flash until you know, a couple
of until started to switch over to HTML five. But
same sort of thing. Yeah, and that that Viacom case
(36:45):
is just kind of spinning in courts right now. Both
sides are arguing that the other is burdened with the
proof that that YouTube and therefore Google had no idea
what was going on. And really, how do you prove
that someone doesn't know something, right, You have to have
evidence that they know. That's the only way you can prove.
You can't prove a negative. But if you are able
to prove that they did know and knowingly allowed it
(37:07):
to happen, that would be the case. Well, let's move
on to title three, which is mercifully short. It's the
Computer Maintenance Competition Assurance Act, which creates an exemption for
making a copy of a computer program by activating a
computer for purposes of maintenance or repair. So essentially, this
means that if you've got a computer and you need
to do some work on it, like you need to
repair it or do some maintenance work on it, and
(37:29):
you've got programs on there already, you can go ahead
and make copies of that stuff. For the purposes of
doing this maintenance or repair work. But once all that
work is done, you then must destroy the Yep. That
was Title three. See how easy that was. Title four.
Title four, Now this one's a little more wacky because
it has six miscellaneous provisions relating to the functions of
(37:50):
the Copyright Office, distance education, the exceptions, and the Copyright
Act for libraries and for making ephemeral recordings, also webcasting
of sound recordings on the Internet, and the Apple capability
of collective bargaining agreement obligations in the case of transfers
of rights and motion pictures. And it's just as exciting
as it sounds. People. So in general, ephemeral recordings means
(38:12):
that you can make a copy of material for broadcast purposes.
So like a radio station, it might make a copy
of all these different songs from various albums onto a
new medium and use that for broadcast purposes. That's perfectly fine.
Um again, but they can only keep it up to
a certain length of time. I think it's like six months.
Then you've got things like the Distance Education Study, which
(38:33):
was really it was worded this way into the d
m c A because the the you know, Congress wanted
to explore ways to promote distance education to give people
more opportunities for educational purposes. UM. So that was just
really kind of put in there to say, let's put
a placeholder here and really think about what this means.
So it doesn't directly affect the d m c A
(38:53):
in this case, but later legislation definitely does. Um the
nonprofit libraries we've already kind of talked about. Webcasting was
interesting because this ended up setting up certain rules that
internet radio stations have to follow that terrestrial radio stations
don't necessarily have to follow, and this has caused a
lot of concern among both parties. Sure. Yeah, and this
(39:15):
is why Pandora, for example, works the way that it does.
If if if you've ever used Pandora, you know that, uh,
it will never play a specific song that you that
you tell it to play right off the bat. It
has to to take a sample of similar songs and
play them in a random order. It also cannot play
a certain song more than more often than you know,
(39:36):
a certain amount of time. Yeah, there's usually like the
rules are kind of weird, Like there's one that says
you cannot, uh, you cannot have this the same songs
from the same album play in like a three hour period,
or you can only do a certain number like it's
it's really specific weird rules. Yeah, and it's it's why
you can't skip too many songs at once because it
(39:57):
might mess with the algorithm and force something to be
randomly played sooner than right. Yeah. And then also there's
even things about like like if you have a looping
program that's broadcast on the internet, it has to be
at least three hours long, Like you can't have a
one hour Like let's say you made a playlist and
it's about a one hour long playlist, you could not
have that being looped on the internet because it's not
(40:19):
long enough to meet these requirements. Also, of course, if
you were playing anything that was under copyright, you would
have to pay whatever the appropriate licensing fees were in
order to have that. Uh and uh, and that's also
an issue, but we won't you know. That's that's almost
its own podcast really to cover all of those issues. Um.
The motion pictures section has to do with residual payments
(40:40):
that go out whenever a motion picture or movie, as
some of us are, our film even if we're want
to go old school super fancy. But you know there
there are residual payments. They go out to the people
who worked on a film whenever it's being broadcast or
played or whatever. Uh. And so that had That's what
(41:00):
that part of the title four had to do with it.
Now we get to title five, which my favorite of
all the titles because it is the one that makes
my brain explode. So I am going to tell you
what Title five covers. And I promise this is not
a joke. Now keep in right mind. This is the
Digital Millennium Copyright Act. So the d m c A
Title five says, the Vessel Hull Design Protection Act creates
(41:24):
a new form of protection for the design of vessel hulls.
And you might say, wait a minute, are you talking
about And yes, I am talking about boats people. So
it creates a new system for protecting original designs of
certain useful articles that make the article attractive or distinctive
in appearance. Uh. That means it's specifically about the aesthetic
(41:44):
design of a boat hull. It is limited to the
hulls of vessels no longer than two hundred feet. In
the d m c A, well, it's it's it's not digital.
It's a design. You could this could apply to something
that's written on paper. There's nothing digital about this. It
has nothing to do with the rest of the act.
(42:06):
It is just about boats. Now. You know what makes
me think. It makes me think that some old senator
out there, And apologies to you, old senator, if you're
the one who said this, but it clearly clearly these
boats are for surfing the interwet I've seen. What I
think is there was an old senator out there who
was saying protecting against parrishy something pirashy, alright, piracy, let's
(42:26):
protect the boats. And uh also probably said that the
Internet is a series of tubes. Oh, it drives me crazy. This.
By the way, if you were not from the United States, hey,
this is how our law works. We have laws where
occasionally you're reading through the law and something completely not
connected to the rest of the law gets thrown in
(42:48):
there for reasons that are probably best not explored because
it will just make you despair over the state of
affairs in the legal system in the United States. You know,
they really wanted to pass it through. This was a
big popular thing that was going on, and they figured
they figured, you know, those kids with their with their
Internet surfboards and there and their piracy are never going
(43:11):
to notice, So do it now. I when I read it,
I thought, this has got to be a joke. And
I thought, there's no there's no other humor in this
very long document that I'm reading. Why would this be
the only thing. I just I don't get. It is
so ridiculous. Okay, Well, and anyway, there are a lot
of parts about the d m c A that make
(43:31):
my brain angry and want me to go hulk smash.
But this is this is probably the capper on it,
both figuratively and literal lasons. It is the last of
the five titles. So that's the d m c A, folks.
That's the that. Those are the amendments to the existing
law that all are there too to try and protect
(43:52):
copyright owners from having their works stolen willie and or
nilly across the interwebs. Um, there's a there's It's been
under fire many many times for several of the passages
within the d m c A. There have been lots
of court cases that have challenged various parts of the
d m c A with varying degrees of success. And
(44:13):
of course there have been other proposed forms of law
that kind of tied back into the d m c A,
and some people say, well, why do we even why
why is this law being proposed. We already have the
d m c AU in effect in the United States,
so therefore we should not pursue even more, Like, why
why are you painting over this fence that has already
(44:33):
painted painted extremely thoroughly, right, Yeah, this is no somehow
into the air in the borders above the fence. It's
no Tom Sawyer job here, folks. This is a very
well painted We're bringing it back to Mark Twain very
literary podcast today. So yeah, you know, it's kind of interesting.
It's also kind of infuriating. Um I do understand the
(44:56):
perspective of copyright holders and wanting to protect their property. Uh.
I don't necessarily agree with how it's come about, but
I totally agree with the desire to do so. Some
measures clearly had to be made to prevent things like
our Buddies and Napster from Yeah, and and again, like
I still my argument is still that if you make
(45:16):
something that's easy too for people to buy, and you know,
and if you have guaranteed the quality of that product,
then people will tend to buy it. If you can't
do that or won't do that, then people are more
willing to try and find, you know, underhanded means of
getting access to that content. Uh. And I mean if
(45:37):
you make it attractive enough, if it's priced fairly, and
if it's if it again the quality is guaranteed, then
a lot of people are going to say, well, I
would rather buy it than run the risk of downloading amount,
you know, some sort of virus to my computer from
a torrent site because I have no real way of
knowing if what I think I'm downloading is actually what
I'm downloading. Yeah, even if legal penalties cannot deter you, Yeah,
(46:00):
sometimes hackers cans can. Yep. Well, I guess that wraps
up this discussion. I'm gonna go and dip my head
in a bucket of water to cool down. Guys, if
you have suggestions for upcoming episodes of tech Stuff, I
highly recommend you get in touch with us. Our email
address is text stuff at Discovery dot com, or you
(46:20):
can drop us a line on Facebook or Twitter. Are handled,
there is text Stuff H S. W And Lauren and
I will taught you again, assuming we're not blocked by
copyright really soon for moralness and bathans of other topics.
Does it has stuff works dot com
Get in touch with technology with tex Stuff from how
stuff dot com. Pathan, everyone, and welcome to text Stuff.
I'm Jonathan Strickland and I'm We're going to talk about
a super fun topic today. We are both repped up.
It is the d m c A, the Digital Millennium
(00:27):
Copyright Act of nineteen Yes, uh yeah. The reason we're
covering this, obviously is because the d m c A
is one of those things a lot of people cite,
uh in various uh discussions online, things about you know
what what pertains to copyright law of that kind of stuff,
and we thought it might be helpful to actually go
(00:47):
through and talk about this this what it actually is,
what it actually says, and some of the ways that
it has interacted with with us in in the real world,
the hypothetical real world that I keep hearing about and
don't actually we see all that often. No, that's because
we play a little halo. But yeah, now they the
the whole reason we're tackling this again is that it's
(01:09):
it's you know, when we talk about piracy, and we
talked about copyright, and we talk about intellectual property and
safe haven. Most of that has to do with the
various copyright laws, at least here in the United States
that we have several copyright laws, but a lot of
it refers back to the d m c A. And
the reason why the d m c A is even
a thing is because once we started entering the digital era,
(01:32):
the landscape changed dramatically. All right. So before the digital era,
when everything was analog, you could make copies of stuff,
but it tended to be uh slow. It tended to
take a lot of effort on the part of the
person making the copy. It was not easy for your
average person to make a copy of something and then
distributed it right for you, you know. For for example,
(01:54):
before digital books, in order to make a copy of
a book, you had to either um, you know, put
it on a copy machine, or in olden days, break
into a printing press room or hold hold some monks
at crossbow point and say illuminate the script faster. Um. Yeah,
it was not easy. And so while there were protections
in place to keep intellectual property under the the ownership
(02:18):
of the person who created it or the entity that
owned the rights to it, because of course we all
know the copyright holder is not necessarily the person who
actually made yes, but anyway, there were laws in place
to protect that property. But you know, the it was
pretty easy to combat the any sort of piracy just
(02:38):
because it was it was a lot of trouble to
pirates stuff. Uh. You know, I can remember back in
the day when I was a little kid occasionally using
a cassette recorder to copy a song that was playing
on the radio. So yeah, okay, so right. But but
until right until U cassette's both video and audio came out,
(02:59):
it wasn't so much an issue. No, no, And and
in fact, the various industries that have an interest in
distributing and producing and distributing media very much opposed things
like cassettes and video tapes. But eventually the government said, no,
the benefit of this outweighs the the potential threat to
(03:21):
your industry, and in many ways they were They were
very much right, because again it just was not easy
to circumvent that stuff. But once we get into the
digital era, now you're talking about the ability to take
information zeros and ones is ultimately what we're talking about here.
You could take information and you can make copies of
it relatively easily and distribute it relatively easily, especially once
(03:44):
the Internet internet became so now now we're in an
era where you could have a book published and someone
could take a digital version of that book, strip away
any sort of copyright protection that happens to be there,
and distribute it freely to whomever they like. And obviously
the various publication industries, music industries, movie television, all that
(04:05):
kind of stuff, they were very much concerned about this,
and and rightfully so, because if it is easier to
get at the material by pirrating it than by buying it,
that's what people are gonna do. Well. Sure, and there
there's a little bit of contention about that, you know,
studies and pretty informal studies as if you have the
people have done about how being able to preview something
(04:27):
for free actually increases sales on that paid object. Sure,
but there's there's a lot of anecdotal evidence that says
that pirates tend to buy more stuff than anyone else does.
So in other words, like a pirate will will download
a torrent of a movie or a television show, really
enjoy it, and then go out and buy a copy
(04:47):
of it because they want to have that legitimate copy.
Has all the bells and whistles, right, Although publishers are
starting to take steps these days, you know, and letting
you preview more and more of songs online or or
or access and things or something like Netflix, so that
you can really check something out and see it's something
that you're interested in purchasing before you right, and Amazon
has a lending library. So but all of these things
(05:08):
are kind of subscription based, so you're still paying into
a system. It's just now you're you've gotten a lot
more options instead of just I want to buy this
site unseen and hopefully I will like it. But anyway,
so the d m c A was was this series
of tweaks to existing law in the United States, and
itself was not just a brand new law. It was
(05:29):
really to add amendments to existing law in the US,
and it was trying to bring US law into alignment
with world the world intellectual property treaties from two of
them in particular, one called the Wipeo Copyright Treaty and
one called the Wipeo Performances and Phonograms Treaty. And so
(05:51):
this was also to kind of help make a united
front and on the global scale of copyright holders versus
the evil, nasty, horrible pirates who are going to destroy
everything from within. Yeah, those those WIDEO treaties were introduced
in n six seven. The d m c A was
(06:11):
originally sponsored by Republican Howard Koble of North Carolina in
the US House. Yep and uh. And it went through
several revisions, a few iterations that ended up adding some
interesting things which we will get to. Um can't wait
to get to it. I am just chomping at the
bit to get to the end of this podcast. It finally,
(06:32):
it finally passed in October when then President Bill Clinton
signed it yep, signed into law. So let's kind of
start talking about what is actually in the d m
c A. It's divided into five titles or five sections,
and the first two titles are the ones that have
the most interesting content from where we are, so we're
(06:55):
gonna we're gonna really constrain those first two titles, but
don't worry, the other three will get covered because title
five is a doozy alright. So title one, this is
from a summary of the d m c A. So
I'm gonna just read the little blurb verbatim. The white
bo copyright and performances in phonograms Treaties Implementation Act of
(07:18):
implements the White bo Treaties, and so it amends US
law to provide appropriate references and links to the White
Bow Treaties. It also prohibits their convention of technological measures
used by copyright owners to protect their works, such as
dr M. That I added these such as DRM. By
the way, that's not in the original language. It is
very important. Yes, adds civil remedies and criminal penalties for
(07:39):
violating the prohibitions. So, in other words, this is the
part of the d m c A that makes it
illegal to try and get around copy protection. So if
that copy protection is something that's physically part of a
device that plays digital media, or if it's something that's
within the digital media itself so software based. Uh, this
(08:00):
by by the definition of the d m c A
illegal to circumvent that in any way unless unless there
are certain circumstances in play. Right and its specifically UM
covers unauthorized access, but not unauthorized copying only for fair use.
Right unauthorized copy is still covered if it's not for
(08:21):
fair use. So that that raises the question what is
fair use. Fair use is this concept where you are
allowed to use someone else's work, some other copyrighted work
in very specific specific circumstances, such as if you were
providing commentary about that work. So let's say, for example,
that Lauren and I wanted to take something that had
(08:45):
been published and copyrighted. Uh, and it's about technology, and
we wanted to really critique it and explain it and
explore it and and add to it with our own
point points of view. Uh, And we wanted to quote
an entire page of that work. Well, as long as
we're doing it responsibly, and we are actually providing commentary
(09:05):
that adds to the discussion, as long as we're not
just broadcasting this back out at you for free, whereas
normally you would have to pay to get it. As
long as you know we're adding enough to it to
make it fair use, Yeah, that would be fair use.
And so you'll you'll often hear people say, oh, like
with music, you could play about fifteen seconds of music
and then that's fair use. No, there is actually not
(09:27):
a definition of how much work you can quote or
play that remains free. Like your your your intent and
your ability to make money off of the product is
definitely in a lot of consideration. The consideration here. For
for example, there was a case in two thousand seven
Stephanie Lens versus Universal Move Music Corporation, which was really interesting.
(09:51):
I'm kind of cutting into the middle of the meat here,
but but I wanted to bring this up. We're talking
about fair use because this was a This was a
woman who uploaded a picture of her thirteen month old
baby dancing to princes let's go crazy onto YouTube, UM
have fun times for everybody, right. It was a twenty
nine second clip, and Universal told YouTube to take it down.
They said, this violates copyright law. She did not ask
(10:13):
for permission to Prince to to use that song. Take
it down. They did take it down, and she she
soon Universal for UM legal fees to contact YouTube to
get it back up, and also for just just messing
with your life, and and and and the judge ruled
in that particular case that that it was fair use,
and that also UM companies really do need to check
(10:36):
that fair use isn't being broken before they ask for
content to be removed. Yeah, you'll often hear about that too.
I mean, there's a I don't I didn't write down
this particular instance, but I know for a fact that
it happened because I know some of the people who
are involved. UH this Weekend Text Tech News Today, Uh,
The The That's a show that's done with Sarah Lane,
(10:57):
Tom Merritt and i Azactar Leo Reports Network. They did
a a show that at one point they were talking
about a video that was also a copyright of work,
and so part of that their show is both an
audio podcast and a video podcast. You can get it
in either format, and the video podcasts also get uploaded
(11:19):
to YouTube. YouTube ended up taking that one down when
they got a request from the owner of the video,
even though it was very much evident that this was
a case where it was fair uses in play because
they were providing commentary about the video itself. They weren't
just playing the video. It was all about uh, really
(11:39):
analyzing it and talking about it in a way that
was was transformative. And uh it took quite some time
to get that turned around. On YouTube's defense, I will
say that if they don't act quickly, bad things can
happen to YouTube. But we'll get into that. That's a
little bit later into the m c A. UH title
(12:00):
one also covers some other stuff. One thing it says
is that if you are talking about public domain public domains.
Another thing we need to talk about public domain is
when you have a work that has existed longer than
copyright protection will cover that work. So it varies from
(12:22):
country to country. So, for example, let's just say what
will make a hypothetical example. Let's say that a country
protects any copyright of work for twenty years. After a
work has existed for more than twenty years, it enters
into the public domain, meaning anyone can use it any
way they like. You can publish as many you could
take that work. You could print out your own copies.
(12:43):
You could distribute them freely. You could run down the
street laughing like a maniac and chucking copies at people's heads.
Uh that sometimes around band booked week with with Mark
Twain properties for example, you could get arrested for some
form of assault and battery that way, but you won't
be arrested for distributing copyright at work. Because it's in
the public domain. You can do whatever you like with it. Again,
(13:05):
the amount of time that a work exists before it's
in public domain varies by country to country, and in
the United States, for example, that number keeps going up
because we have some pretty powerful people who are saying like, no, no, no,
we we really want to keep snow White for example, Yeah,
even though it published in there's a certain mouse that
(13:25):
has had a large amount of influence on this particular subject. Yeah,
it's very true. Disney has been very active in keeping
uh you know, adding more years to what would be
considered copyright. And then there's the question of well, can
we transfer it so that, uh, even after the copyright
(13:45):
holder has passed away, or maybe the company turns into
something else, like, can we keep it so that those
rights continue can be transferred to the next Yeah. So
so there are a lot of issues with that. Well,
the title one of dmc A tells us that the
the rules about public domain revert to the country of
(14:06):
origin of that work. So if the work was produced
in uh, say, France, then whatever France's rules are for
public domain would be in play no matter where else
in the world you might be, or well, in this case,
in the United States, because DMC only covers the US. Clearly,
right right in the United States, is not adding jurisdiction
of the entire world here. They are not. However, an
(14:28):
important part of that title one is that um. It
names the US as a member country of of WIPO,
and it really and says that it provides equal protection
to any other member country of WIPO in the United
States any any work from Yeah. So in other words,
it's supposed to apply the same rules and same rigor
h for any copyrighted work that's under threat from a
(14:49):
WIPO country as it would for anything that's from the
United States. So no preferential treatment for US versus non US.
And also with this public domain issue, you defer to
the rules of the country of origin. So whichever country
produced said work, that's the rules that apply for public
domain UM and uh the the whole unauthorized access versus
(15:12):
unauthorized copying. There are some exemptions that are allowed, but
they are pretty specific. For one thing, law enforcement, intelligence
and other governmental agencies are exempt from Title one, so
uh the you know, the FBI doesn't have to worry
about following these rules that kind of thing. Other exceptions
(15:33):
apply to nonprofit library, archive, and educational institutions that wish
to obtain authorized access to works. So again, uh the
access still has to be authorized. They can't circumvent and
they can't do it i'll will and nilly, they have
to ask, right, but they can make copies if it's
for archival purposes. So in that sense, because I remember
there's two sections here. There's the access and then there's
(15:55):
the actual copying, because there's been a lot of questions
about that, UH, and and the about the you know,
making things like a gadget that could circumvent uh, the
access block part that's illegal. But but creating a gadget
that can get around the copy protection is not illegal.
(16:15):
It's just the access part that you have to worry about.
And again it's not illegal, but you have to use
it in very specific circumstances to not get in trouble.
Other exceptions include reverse engineering for computer programmers. So if
you're trying to make a computer program that can be
interoperable with an existing program, then you can start making
(16:36):
copies of the existing program in an effort to learn
how it works so that you can make sure that
your new software works seamlessly with the old software. That's
really what that was there to protect. Encryption research is protected,
so UH, if your work is designed to analyze, evaluate,
and improve encryption technologies, you're protected also for the protection
(16:56):
of miners. So if there's any technology that's designed to
limit access to materials that you know are considered to
be harmful to minors, but it would otherwise violate part
of Title one, those are exempt from the Title one
issues as well. And then there's personal privacy, which is
if the technology that was used to protect a work
would gain or disseminate unauthorized information about a quote natural
(17:20):
person unquote, it can be circumvented. So if you were
to put DRM on something and that DRM, as part
of what it does besides protecting the copyrighted work, would
also gather information about you, you can you can then
circumvent because because they consider that the dissemination of the
private information is worse than circumventing the DRM. And finally, UH,
(17:44):
security testing is also exempt from this. So uh yeah,
any devices that are primarily designed or produced to circumvent
h copyright protection, uh, that have only limited commercially significant
purpose or use other than to circumvent or are marketed
for use in circumventing our big no nos under Title one. Yeah,
(18:08):
this is this is some interesting stuff. So again, really
it's the access that's the big deal here. Copying. Copying
is still a problem. You know, you can't just copy
like crazy. You have to be able to justify it
under those rules I was talking about. But the access
is definitely a big issue. So in other words, if
something is behind a paywall, you can't circumvent the paywall
(18:31):
to get at the stuff, because that's talking about access. Now,
if you if you don't have a paywall, if you
can freely access it um or you've paid to get
through it, then making the copy, that's more of a
question of do you fall under one of those exemptions?
Right right? Uh? It does also say maybe you were
getting to this one, but I thought that this one
was particularly interesting. It does. It says that it does
(18:53):
not and will never mandate that the design of products
be be such that they specifically prevent the creation of
devices made to circumvent themselves. It gets a little little
complicated and timey wymy wibbly wobbly, doesn't it um, It does,
But but it's really to protect companies and say say
that if you're designing products, then it's not your problem
(19:15):
if someone creates something that can circonvent it. One other
thing that title one covers. It actually says that the
provision prohibits rights holders, meaning people who own copyright to material.
It prevents them from applying the copyright prevention or copyright
circumvention prevention technologies to free television and basic and extended
(19:37):
Basic tier cable broadcasts, meaning that you can't put copyright
protection on stuff that is freely distributed in any way.
So you could not put some sort of copy protection
over over the air broadcast because of the very nature
of how it's distributed. Okay, so so share So, so
if you wanted to record something that was airing on PPS,
(19:59):
then do it. You could do that. Yeah, anything that
was on any sort of over the air transmission, you
would be you would It doesn't fall fall under the
umbrella of d M c A as as opposed to
a lot of other digital transmissions or cable transmissions that
which are here. Here's another thing, like, if that same
same program that you would have gotten over the air
(20:21):
on an antenna and you want to record it on
your your home system, if it's perfectly okay under that circumstance,
it's not perfectly okay if that same program is being
distributed over the internet. Interesting, huh, Because it's two different
means of distribution. It has nothing to do with the content,
has nothing to do with whether or not it's in
their copyright, has everything to do with the method of distribution.
(20:43):
What a crazy world we live in. Do you have
anything else to say about title one, Lauren, anything else? Um?
Because it gets crazier from here on out. It does
get crazier. Now. There's a lot of interesting court cases
that have come up about what it means to be
an owner versus a life and see versus a user
of any of these pieces of media, especially one case
(21:06):
in two thousand seven Timothy S. Verner versus Autodesk, and
Verner sued Autodesk because he had been buying all of
the software from garage sales and selling it on eBay
and um some of that. One of these things that
was included was a program called autocat, owned by Autodesk.
It's a computer assisted design sure um. The user agreement
(21:29):
in in AutoCAD says that it's you are a licensee
and that your license to use this as non transferable.
So whoever buys it, that's who. That's But Verner said
it wasn't his fault that someone had sold it to
him at a garage sale and that he should therefore
have the right to sell it on eBay, and an
Autodesk said not. And that is interesting. I mean, what
(21:51):
do you do because the person who sold it, the
too verner, as essentially the one who's violating that licensing agreement, right,
But but the courts, the courts upheld out at desk.
They said, they said, no, because you have entered into
a legal agreement period, you are responsible for what you do.
It's weird. I would have said that the person who
(22:13):
entered the legal agreement was the one who originally bought
the software, not him, because if he bought it from
a garage sale, he did not clearly buy it from
any retailer that was Autodesk. So it's interesting to me,
not that I'm contesting what you're saying, but it's interesting
to me that the court would say that because you know,
they basically ruled that he was never a legitimate owner. Okay,
(22:37):
got so, So therefore, because he's not a legitimate owner,
he cannot be a reseller. Cannot be a reseller. Christ
you know, this is one of those things where it
kind of it's it brings up that whole idea of
the right of first sale which is, if you buy something,
then you have the right to sell it off to
someone else. The digital era has really changed that as well,
because you can sell something that's digital and that that's
(22:58):
the entire that's the entire you that I'm talking about
with license c R a user versus an owner. Right, Well,
I and you can understand autodesks point. They might say, well,
how can we be certain that other than you know,
through registration, how can we be certain that the copy
of the of AutoCAD has been white from all the
computers that the original owner had. So if I bought AutoCAD,
(23:23):
hypothetically the key wouldn't work, yeah, right, which again, uh,
the problem is that there are programs out there that
will generate new keys. Yeah, so you can circumvent it,
which you're not supposed to do. But yeah, so this
is interesting. That's interesting that it goes all the way
down to selling stuff on eBay, right. Yeah. On a
(23:44):
grander scale, this is the same kind of issue that
has to do or or title one anyway has to
do with why unlocking your cell phone is illegal, Because
disabling the DRM software in a cellphone that that locks
it to a single carrier is illegal. So you can
jail break your phone, but you can't you cannot unlock it. Well,
(24:06):
you're you're you're allowed to. You're littled to jail break
it to install software, but not unlock it for moving
it from one to another. And this is a thing
that once every three years, the Library of Congress sits
down and reviews complaints that people have submitted to them
about various bits of legislation and dan law. And during
(24:29):
one of these, uh, one of these tricycles what are
they called, try any ill trannial reviews? I like tricycles better.
During during one of these tricycles recently, the Library of
Congress um up help this that that, yeah, that jailbreaking
to another network is not legal because and I do
not quote, but this is the gist of their argument.
(24:49):
There are so many devices on the market these days
that surely you can find one on the network. Blame
the victim, why don't you? Wow? I definitely feel a
sting on this one. But then again, I bought my
phone unlocked already, because I bought a phone that was
designed to be unlocked, so that you could buy it
and then put it on whichever network that's still legal.
(25:11):
By the way, companies can choose to offer up an
unlocked device. You just cannot take a device that has
been locked and then unlock it. Yeah, there's a there's
a bit of authorization again in this issue. Yea. So well,
you know what, there's a lot more to talk about
with the d m c A. But before we do,
let's take a quick moment to thank our sponsor. Alright,
(25:34):
getting back into the d m c A, we're ready
to move on to title two. And I know some
of you are thinking there are five titles here, how
long is this going to go? But really, titles one
and two are the big ones, and the other ones
are well, you know, we'll touch on them, but they
won't be quite as extensive. So Title two is the
Online Copyright Infringement Liability Limitation Act, which creates limitations on
(25:56):
liability for online service providers for copyright and fringement when
engaged in certain types of activities. So this is of
course where the term safe harbor comes from. Is this
title too of the d m c A. So safe
harbor is essentially this idea that if you are an
online service provider, and that could be anything from an
Internet service provider, you know, an I s P to
(26:17):
a platform that people use on the internet, like like Tumblr, YouTube.
Yeah exactly that if you provide that service, you are
not necessarily monetarily liable for any sort of copyright infringement
that's being performed by the users of your platform. But
there are again very specific rules in play. It's not
(26:39):
that you're a given free license. You can't just sit
there and say safe harbor, safe harbor, I'm okay. You
have to actually, uh, you know, show that you are
one unaware that the stuff is going on, and too,
you cannot be benefiting from the fact that infringement is
going on, right And and furthermore, if a company contacts
you and says, hey, this thing is on your site,
(26:59):
it's it's it's copyright infringement, please take it down, you
have to do that. You have to respond very quickly.
And that's one of the reasons why we see these
these things happen where YouTube will pull something very quickly
because they have to under the rules of d m
c A if they received that notification. I mean, there's
probably several big cases against YouTube that are all about
(27:21):
copyright infringement. Viacom has a huge case, which is which
is still going on, that was filed in two thousand
and seven of our contention of hundred and sixty thousand
clips that had been viewed fIF one point five billion
times um and and they were basically saying YouTube you um,
I'll quote from it. Because YouTube directly profits from the
(27:42):
available availability of popular infringing works on its site, it
has decided decided to shift the burden entirely onto copyright
owners to monitor the YouTube site on a daili or
hourly basis to detect infringing videos. So Viacom saying, hey,
this should not be our job, and YouTube saying, hey,
it shouldn't be our job either. There's seven two hours
worth of material being uploaded every minute. There's no one
(28:04):
who can sit there and go over every single frame
of every single video that's always being submitted to this service. Um.
And that's basically what the court said. They threw it
out without even being tried in it came back actually
in April, there was a reversal. The the court said
that basically a reasonable jury could have found that that
(28:27):
YouTube was aware of what was going on and just
not taking steps right. Yes, and and that's that's one
of the things under d m c A is that
if the the service providers aware of it, they have
to take steps to prevent it. Now again, if it's
something where it comes under fair use, that's where it
gets money. Again. Yeah, because I mean, like it's it's
not it's not YouTube's job to determine what is fair
(28:49):
use and what is not, uh, and the up the
the copyright holder is supposed to at least take the
into consideration before taking steps. But ultimately, fair use is
something that's decided in a court of law. I mean,
you know, it's it's it's all down to does the
copyright holder want to take the steps to actually uh
prosecute someone, and then the court decides if it was
(29:12):
fair use or not. That's that's the real problem with
fair use is that it's really something that's decided after
a court case. Um if it if no court case happens.
So if a copyright holder never comes after you for
the way you've used something, you could argue that's because
it's fair use. But legally speaking, that's not the determination.
It's just that no one came after you. That doesn't
mean that they won't come after you some time in
(29:33):
the future. This is the fun part of copyright law, right,
So let's talk about some of the things that that
the limitations on liability cover for copyright infringement this whole
safe harbor idea. One of them is transitory communications. Now,
this limits the liability of a service provider when all
the provider is doing is acting as a data conduit.
(29:55):
In other words, all they're doing is allowing information to
pass from one entity to another entity. They're not they're
not taking part in whatever the content is. Uh, They're
just essentially they're the pipes. And if you are the
one who owns the pipes, you cannot be held responsible
monetarily for any copyright infringement material that passes along there
(30:15):
as long as you are not complicit in that transaction. So,
in other words, if you're a service provider and you
are not knowingly providing people the chance to send copyright
infringed material back and forth, or you're not profiting from it,
then you're not liable. But if you're profiting from it,
then there's a problem. And that's one of the things
(30:36):
against YouTube is that if YouTube is running ads against videos,
then that means, yeah, they're profiting from those videos. So
if the videos are videos that infringe upon something, then
there's there's a case there for d m c A. Now, granted,
most of the time, the first step is still saying
take this down, and if YouTube does that, that's usually
as far as it goes. But it's something to keep
(30:58):
in mind. Next, have system caching that limits the liability
of a service that retains data to send it later
at the sender's discretion. So there are a lot of
different ways of thinking about this. But imagine that you
have scheduled something to post at a particular time. Well,
a copy of that information maybe existing on a service
provider's site. But uh, what you're saying is that if
(31:20):
that materials copyrighted and it's unauthorized, it's an unauthorized copy.
The system cannot be held responsible for holding that copy
because they're really just fulfilling their end of a service. Again,
same rules apply. They can't be complicit, they can't be
profiting from it. Uh. Storage of information on systems or
networks at direction of users. Same sort of thing. You
(31:41):
have cloud storage. If if I have a cloud storage account,
and the you know part of that is that I
am trusting that my provider is not snooping in on
all the stuff that I'm storing on my cloud storage.
Then you know, you can't hold the cloud storage company
responsible if I'm filling up my storage with you know,
(32:01):
it can't be expected to look at all every single
one of the files. When I put put my unauthorized
discography of Britney Spears up there, they can't. You know,
they're not held responsible for it. I should definitely hold
responsibility for something like that if I were to ever
do that, and I fully expect to be held responsible
and also will never happen. Uh. Then there's the information
(32:22):
location tools. So this is things like search engines. So
if you were to type in something in a search engine,
for example, you were interested in a particular television show,
let's say I don't know Supernatural, and you were to
type that in and some of the links that came
back linked to things that were infringing copyright, the search
engine would not be held responsible for those links unless again,
(32:46):
it was violating those other rules. So in other words,
you can't blame Google for putting a link up to
material that infringes upon copyright because Google is not the
one responsible for the material. It's just all it is supporting.
It's just indexing links, that's all it's done, although it
does do so with ads, So that makes me wonder
if there's any kind of any of that sticky there.
(33:07):
That's probably another issue. But again, and they're also told
that if someone reports it, they are supposed to block
access or take those links down. That that's raised a
lot of ire in the various communities online about the
idea of blocking links because it's talking about essentially breaking
one of the fundamental parts of the Internet, or at
least of the Web, if not the Internet anyway, that's
(33:30):
a different discussion. Uh those are the four main areas
where the liability is limited. Um. They also, it says
section five twelve, which is the specific section of the
uh the law that this uh the suppresses. Yeah, it
says it also contains a provision to ensure that service
providers are not placed in the position of choosing between
(33:53):
limitations on liability on the one hand and preserving the
privacy of their subscribers on the other. So, in other words,
they are not supposed to be put into any kind
of position where they have to identify someone when part
of their business is all about hey, your private and
respect of privacy. Yeah, so they are supposed to be
(34:13):
allowed to remain free of that. Uh, but that even
that has some issues so like. But essentially this is
to to make sure that they remain in compliance with
things like the Electronic Communications Privacy Act. So in other words,
you're talking about there are two different laws here that
kind of conflict with one another, which one has precedence
(34:34):
in this case, the privacy holds up over the copyright violation. Uh.
And really the reason why this whole section exists is
to prevent companies from having to undergo massive amounts of
expenses to defend themselves or also to endure excessive interference
from copyright holders or from government officials. And uh so
(34:57):
you know, the fact that this d m c A
stuff is in a way, it's you could you could
see it as a way of bending to the will
of copyright holders. That's the way a lot of critics painted, right,
like the d m c a A is just the
government laying down in front of copyright holders. Right. But
but this one, this one really actually works in the
(35:18):
other direction in the favor of the service provide the
service providers who are just just trying to do their
jobs and are not necessarily There was a case in
two thousand six Io Group felt a complaint against Vieo
Networks for Vo Networks had a site that would let
users transcode video into flash. Okay, sure, and and I
a group was saying that View Networks users were trans
(35:42):
transcoding videos into flash that that were copyright infringement. Okay,
So that they were taking videos that were under copyright
and through the process of transcoding them that was violating
the copyright. Yes, And they said that They said that
Vo was responsible for this because as as a transcoder,
they were they were implicit and they were they were
(36:03):
actually they were giving the people the ability to infringe
just from the very nature of what the service was.
And the court ruled that that the process was automated
and that therefore VO had no knowledge and like they
could not know what the content was because the actual
process of transcoding had nothing to do with a human
being reviewing stuff and saying, hey, wait a minute, it was.
(36:25):
It was really good, but a really important, clear cut
case to prevent that kind of legal actions from being
taken in the future. That makes a lot of sense,
because I mean, YouTube had for a long time was
always encoding videos into flash until you know, a couple
of until started to switch over to HTML five. But
same sort of thing. Yeah, and that that Viacom case
(36:45):
is just kind of spinning in courts right now. Both
sides are arguing that the other is burdened with the
proof that that YouTube and therefore Google had no idea
what was going on. And really, how do you prove
that someone doesn't know something, right, You have to have
evidence that they know. That's the only way you can prove.
You can't prove a negative. But if you are able
to prove that they did know and knowingly allowed it
(37:07):
to happen, that would be the case. Well, let's move
on to title three, which is mercifully short. It's the
Computer Maintenance Competition Assurance Act, which creates an exemption for
making a copy of a computer program by activating a
computer for purposes of maintenance or repair. So essentially, this
means that if you've got a computer and you need
to do some work on it, like you need to
repair it or do some maintenance work on it, and
(37:29):
you've got programs on there already, you can go ahead
and make copies of that stuff. For the purposes of
doing this maintenance or repair work. But once all that
work is done, you then must destroy the Yep. That
was Title three. See how easy that was. Title four.
Title four, Now this one's a little more wacky because
it has six miscellaneous provisions relating to the functions of
(37:50):
the Copyright Office, distance education, the exceptions, and the Copyright
Act for libraries and for making ephemeral recordings, also webcasting
of sound recordings on the Internet, and the Apple capability
of collective bargaining agreement obligations in the case of transfers
of rights and motion pictures. And it's just as exciting
as it sounds. People. So in general, ephemeral recordings means
(38:12):
that you can make a copy of material for broadcast purposes.
So like a radio station, it might make a copy
of all these different songs from various albums onto a
new medium and use that for broadcast purposes. That's perfectly fine.
Um again, but they can only keep it up to
a certain length of time. I think it's like six months.
Then you've got things like the Distance Education Study, which
(38:33):
was really it was worded this way into the d
m c A because the the you know, Congress wanted
to explore ways to promote distance education to give people
more opportunities for educational purposes. UM. So that was just
really kind of put in there to say, let's put
a placeholder here and really think about what this means.
So it doesn't directly affect the d m c A
(38:53):
in this case, but later legislation definitely does. Um the
nonprofit libraries we've already kind of talked about. Webcasting was
interesting because this ended up setting up certain rules that
internet radio stations have to follow that terrestrial radio stations
don't necessarily have to follow, and this has caused a
lot of concern among both parties. Sure. Yeah, and this
(39:15):
is why Pandora, for example, works the way that it does.
If if if you've ever used Pandora, you know that, uh,
it will never play a specific song that you that
you tell it to play right off the bat. It
has to to take a sample of similar songs and
play them in a random order. It also cannot play
a certain song more than more often than you know,
(39:36):
a certain amount of time. Yeah, there's usually like the
rules are kind of weird, Like there's one that says
you cannot, uh, you cannot have this the same songs
from the same album play in like a three hour period,
or you can only do a certain number like it's
it's really specific weird rules. Yeah, and it's it's why
you can't skip too many songs at once because it
(39:57):
might mess with the algorithm and force something to be
randomly played sooner than right. Yeah. And then also there's
even things about like like if you have a looping
program that's broadcast on the internet, it has to be
at least three hours long, Like you can't have a
one hour Like let's say you made a playlist and
it's about a one hour long playlist, you could not
have that being looped on the internet because it's not
(40:19):
long enough to meet these requirements. Also, of course, if
you were playing anything that was under copyright, you would
have to pay whatever the appropriate licensing fees were in
order to have that. Uh and uh, and that's also
an issue, but we won't you know. That's that's almost
its own podcast really to cover all of those issues. Um.
The motion pictures section has to do with residual payments
(40:40):
that go out whenever a motion picture or movie, as
some of us are, our film even if we're want
to go old school super fancy. But you know there
there are residual payments. They go out to the people
who worked on a film whenever it's being broadcast or
played or whatever. Uh. And so that had That's what
(41:00):
that part of the title four had to do with it.
Now we get to title five, which my favorite of
all the titles because it is the one that makes
my brain explode. So I am going to tell you
what Title five covers. And I promise this is not
a joke. Now keep in right mind. This is the
Digital Millennium Copyright Act. So the d m c A
Title five says, the Vessel Hull Design Protection Act creates
(41:24):
a new form of protection for the design of vessel hulls.
And you might say, wait a minute, are you talking
about And yes, I am talking about boats people. So
it creates a new system for protecting original designs of
certain useful articles that make the article attractive or distinctive
in appearance. Uh. That means it's specifically about the aesthetic
(41:44):
design of a boat hull. It is limited to the
hulls of vessels no longer than two hundred feet. In
the d m c A, well, it's it's it's not digital.
It's a design. You could this could apply to something
that's written on paper. There's nothing digital about this. It
has nothing to do with the rest of the act.
(42:06):
It is just about boats. Now. You know what makes
me think. It makes me think that some old senator
out there, And apologies to you, old senator, if you're
the one who said this, but it clearly clearly these
boats are for surfing the interwet I've seen. What I
think is there was an old senator out there who
was saying protecting against parrishy something pirashy, alright, piracy, let's
(42:26):
protect the boats. And uh also probably said that the
Internet is a series of tubes. Oh, it drives me crazy. This.
By the way, if you were not from the United States, hey,
this is how our law works. We have laws where
occasionally you're reading through the law and something completely not
connected to the rest of the law gets thrown in
(42:48):
there for reasons that are probably best not explored because
it will just make you despair over the state of
affairs in the legal system in the United States. You know,
they really wanted to pass it through. This was a
big popular thing that was going on, and they figured
they figured, you know, those kids with their with their
Internet surfboards and there and their piracy are never going
(43:11):
to notice, So do it now. I when I read it,
I thought, this has got to be a joke. And
I thought, there's no there's no other humor in this
very long document that I'm reading. Why would this be
the only thing. I just I don't get. It is
so ridiculous. Okay, Well, and anyway, there are a lot
of parts about the d m c A that make
(43:31):
my brain angry and want me to go hulk smash.
But this is this is probably the capper on it,
both figuratively and literal lasons. It is the last of
the five titles. So that's the d m c A, folks.
That's the that. Those are the amendments to the existing
law that all are there too to try and protect
(43:52):
copyright owners from having their works stolen willie and or
nilly across the interwebs. Um, there's a there's It's been
under fire many many times for several of the passages
within the d m c A. There have been lots
of court cases that have challenged various parts of the
d m c A with varying degrees of success. And
(44:13):
of course there have been other proposed forms of law
that kind of tied back into the d m c A,
and some people say, well, why do we even why
why is this law being proposed. We already have the
d m c AU in effect in the United States,
so therefore we should not pursue even more, Like, why
why are you painting over this fence that has already
(44:33):
painted painted extremely thoroughly, right, Yeah, this is no somehow
into the air in the borders above the fence. It's
no Tom Sawyer job here, folks. This is a very
well painted We're bringing it back to Mark Twain very
literary podcast today. So yeah, you know, it's kind of interesting.
It's also kind of infuriating. Um I do understand the
(44:56):
perspective of copyright holders and wanting to protect their property. Uh.
I don't necessarily agree with how it's come about, but
I totally agree with the desire to do so. Some
measures clearly had to be made to prevent things like
our Buddies and Napster from Yeah, and and again, like
I still my argument is still that if you make
(45:16):
something that's easy too for people to buy, and you know,
and if you have guaranteed the quality of that product,
then people will tend to buy it. If you can't
do that or won't do that, then people are more
willing to try and find, you know, underhanded means of
getting access to that content. Uh. And I mean if
(45:37):
you make it attractive enough, if it's priced fairly, and
if it's if it again the quality is guaranteed, then
a lot of people are going to say, well, I
would rather buy it than run the risk of downloading amount,
you know, some sort of virus to my computer from
a torrent site because I have no real way of
knowing if what I think I'm downloading is actually what
I'm downloading. Yeah, even if legal penalties cannot deter you, Yeah,
(46:00):
sometimes hackers cans can. Yep. Well, I guess that wraps
up this discussion. I'm gonna go and dip my head
in a bucket of water to cool down. Guys, if
you have suggestions for upcoming episodes of tech Stuff, I
highly recommend you get in touch with us. Our email
address is text stuff at Discovery dot com, or you
(46:20):
can drop us a line on Facebook or Twitter. Are handled,
there is text Stuff H S. W And Lauren and
I will taught you again, assuming we're not blocked by
copyright really soon for moralness and bathans of other topics.
Does it has stuff works dot com
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