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.
In some sense, I think the safe harbor provisions of the DMCA protect the darknet. If ISPs could be sued for things that happens on their networks, I presume they would pre-emptively lock down anything that even looks like it might be illegal.
I’d like to point out that while the anti-circumvention portions of the DMCA aren’t violated on the darknet most of the time (at least after the initial violation to strip it of technologies), the DMCA also contains portions like the “safe harbor” provisions, that allow for hosts and service providers to comply with takedown notices of content hosted by them (or else they’ll be liable for damages). A quick look over ChillingEffects.org shows that it is as important (if not more so) than the circumvention portions.
The Google advert on your website today was a classic: DRM from Synccast. I have a screenshot if you want!
This may be true regaring OSx86, but the “darknet” didn’t have any role in “circumvention” beyond transportation of data.. which is not a violation of section 1201. Certain members of the darknet certainly violated the DMCA to strip it of it’s TPM’s, but that is a violation by them, and is not a result of the darknet itself.
In fact.. this so called violation involved rewriting part of the OS or running it in emulation. I don’t think that actually qualifies as stripping a TMP, but rather making a close derivitive work (illegal, but not in violation of the DMCA).
It’s not quite true that no files arrive at the darknet with no technical protection measures. Take for example the recent leak of Apple’s OS X x86 version to the darknets. It arrived with several protection measures which prevent it from being installed directly on generic x86 architectures. In fact several web-sites launched contests to see who could break these measures first. As a result, there are protected versions as well as directions on how to crack it – both on the darknet.