January 23, 2019

Archives for August 2005

DMCA, and Disrupting the Darknet

Fred von Lohmann’s paper argues that the DMCA has failed to keep infringing copies of copyrighted works from reaching the masses. Fred argues that the DMCA has not prevented “protected” files from being ripped, and that once those files are ripped they appear on the darknet where they are available to everyone. I think Fred is right that the DMCA and the DRM (anti-copying) technologies it supports have failed utterly to keep material off the darknet.

Over at the Picker MobBlog, several people have suggested an alternate rationale for the DMCA: that it might help raise the cost and difficulty of using the darknet. The argument is that even if the DMCA doesn’t help keep content from reaching the darknet, it may help stop material on the darknet from reaching end users.

I don’t think this rationale works. Certainly, copyright owners using lawsuits and technical attacks in an attempt to disrupt the darknet. They have sued many end users and a few makers of technologies used for darknet filesharing. They have launched technical attacks including monitoring, spoofing, and perhaps even limited denial of service attacks. The disruption campaign is having a nonzero effect. But as far as I can tell, the DMCA plays no role in this campaign and does nothing to bolster it.

Why? Because nobody on the darknet is violating the DMCA. Files arrive on the darknet having already been stripped of any technical protection measures (TPMs, in the DMCA lingo). TPMs just aren’t present on the darknet. And you can’t circumvent a TPM that isn’t there.

To be sure, many darknet users break the law, and some makers of darknet technologies apparently break the law too. But they don’t break the DMCA; and indeed the legal attacks on the darknet have all been based on old-fashioned direct copyright infringement by end users, and contributory or vicarious infringement by technology makers. Even if there were no DMCA, the same legal and technical arms race would be going on, with the same results.

Though it has little if anything to do with the DMCA, the darknet technology arms race is an interesting topic in itself. In fact, I’m currently writing a paper about it, with my students Alex Halderman and Harlan Yu.

DMCA: An Avoidable Failure

In his new paper, Fred von Lohmann argues that the Digital Millennium Copyright Act of 1998, when evaluated on its own terms, is a failure. Its advocates said it would prevent widespread online copyright infringement; and it has not done so.

Fred is right on target in diagnosing the DMCA’s failure to do what its advocates predicted. What Fred doesn’t say, though, is that this failure should have been utterly predictable – it should have been obvious when the DMCA was grinding through Congress that things would end up like this.

Let’s look at the three assumptions that underlie the darknet argument [quoting Fred]:

  1. Any widely distributed object will be available to some fraction of users in a form that permits copying.
  2. Users will copy objects if it is possible and interesting to do so.
  3. Users are connected by high-bandwidth channels.

When the DMCA passed in 1998, #1 was obviously true, and #3 was about to become true. #2 was the least certain; but if #2 turned out to be false then no DMCA-like law would be necessary anyway. So why didn’t people see this failure coming in advance?

The answer is that many people did, but Congress ignored them. The failure scenario Fred describes was already conventional wisdom among independent computer security experts by 1998. Within the community, conversations about the DMCA were not about whether it would work – everybody knew it wouldn’t – but about why Washington couldn’t see what seemed obvious to us.

When the Darknet paper was published in 2001, people in the community cheered. Not because the paper had much to say to the security community – the paper’s main argument had long been conventional wisdom – but because the paper made the argument in a clear and accessible way, and because, most of all, the authors worked for a big IT company.

For quite a while, employees of big IT companies had privately denigrated DRM and the DMCA, but had been unwilling to say so in public. Put a microphone in front of them and they would dodge questions, change the subject, or say what their employer’s official policy was. But catch them in the hotel bar afterward and they would tell a different story. Everybody knew that dissenting from the corporate line was a bad career move; and nobody wanted to be the first to do it.

And so the Darknet paper caused quite a stir outside the security community, catalyzing a valuable conversation, to which Fred’s paper is a valuable contribution. It’s an interesting intellectual exercise to weigh the consequences of the DMCA in an alternate universe where it actually prevents online infringement; but if we restrict ourselves to the facts on the ground, Fred has a very strong argument.

The DMCA has failed to prevent online infringement; and that failure should have been predictable. To me, the most interesting question is how our policymakers can avoid making this kind of mistake again.

Measuring the DMCA Against the Darknet

Next week I’ll be participating in a group discussion of Fred von Lohmann’s new paper, “Measuring the DMCA Against the Darknet“, over at the Picker MobBlog. Other participants will include Julie Cohen, Wendy Gordon, Doug Lichtman, Jessica Litman, Bill Patry, Bill Rosenblatt, Larry Solum, Jim Speta, Rebecca Tushnet, and Tim Wu.

I’m looking forward to a lively debate. I’ll cross-post my entries here, with appropriate links back to the discussion over there.