Posted on Jul 9, 2017 by Rick Falkvinge

Would you like a copyright law that said “if Hollywood doesn’t like this law, they can use their own”? Well, you see…

Imagine if copyright law listed tons of exceptions for free use that all publishers were required to respect. (Well, it does, kind of, even if the list in question is horribly deficient.) But then, imagine that somewhere in this law, there’s also the line “if a publisher doesn’t like the wording of this law and the existence of these mandatory exceptions, they can set their own terms entirely instead, and it will be illegal to circumvent those terms that don’t even provide minimally mandated exceptions”. This is the sickening reality today, and it’s because of Digital Restriction Measures (DRM).




Around the turn of the century, when legislators had the hubris of deciding what copyright monopoly law should look like in the entire next thousand-year reign, enshrined in fancy bill names like the Digital Millennium Copyright Act and the European Union Copyright Directive, they intended to set terms in absolute Roman concrete. Do note that this was before Facebook, Twitter, and YouTube had even been founded that lawmakers insisted they knew exactly what the very long future needed in terms of harsher monopoly laws and restrictions — and lawmakers included a very nasty and small nasty poison pill in their own code of law, cheered on heartily by the Music And Film Industry Association of America.

The poison pill in question said that if something is published digitally, then the publisher has the right to strip the buyer (buyer!) of all their statutory property rights and usage rights, and it will even be criminal for the buyer to exercise their minimal statutory rights against the publisher’s wishes. This was done through Digital Restriction Measures (DRM) — that if a publisher introduced technical usage restrictions by means of DRM into a digital work, it became criminal to even attempt a circumvention of those measures, even when doing so would just invoke your statutory property and usage rights.

The net effect of this is that the entire code of the copyright monopoly, except for this one line, is completely nullified. Copyright monopoly law now says “whatever the publisher wants, and it’s criminal to attempt otherwise”. The other provisions never come into effect. This is the result of the insane hubris of lawmakers around the turn of the century insisting on creating a thousand-year copyright reign, innovation and creativity be damned.

Today, July 9, is the Free Software Foundation’s international day for awareness about the harms of Digital Restriction Measures (“DRM”).

This means that when a book is sold to you in digital format, if the publisher decides you’re only allowed to read your own book at night, or in Ankara, or without any friends nearby, or when you’re marked “single” on Facebook, such insane and normally-utterly-illegal requirements are now the law of the land.

Of course, this also means that a publisher is free to revoke your right to read it at all. This has happened more than a few times with books purchased on Amazon – notably, it happened with George Orwell’s Nineteen Eighty-Four, of all books it could have happened to.

If you have not already read Richard Stallman’s The Right To Read, I suggest you take a moment out of your day to read it now. How close to this scenario have we come? When it was written, it was utterly unthinkable; as remote as colonies on the moons of Jupiter.

So what do we do about this?

The legal measure that’s needed is actually rather simple. It’s the complete removal of any criminalization of tampering with Digital Restriction Measures. If you bought it, it’s yours to tamper with — open it up, see how it works, rewire it, rebuild it into something different — exactly as you please, end of story. Restore normal property rights over things you purchased. Freedom to Tinker is a very real, and very necessary, thing.

This would also remove all the utterly ridiculous scenarios where cars and tractors (!) have become illegal to modify, even though you own them, because of this same provision. Farmers are now required to pirate tractors to get their harvest in.

In a further development, I would like to see the publishing with Digital Restriction Measures criminalized; doing so amounts to fraud and selling deliberately substandard products. But making it toothless is a good first step.


Disclaimer: I am a monthly donor to the Free Software Foundation.

Disclaimer II: I think maybe you would be interested in being so, too.

About Rick Falkvinge

Rick is Head of Privacy at Private Internet Access. He is also the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. Additionally, he has a tech entrepreneur background and loves good whisky and fast motorcycles.


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  • There’s no doubt that the DMCA does get abused by publishers, and DVD/BD region controls are completely farcical if you have a substantial collection of legitimate discs and then move to a country in a different region as I have. HDCP is even moreso because of compatibility problems, amongst others, to the extent that I’ve ended up not being able to use at all a product I bought until I buy a new TV. A new TV to replace a dated but perfectly serviceable one! Talk about planned obsolescence.

    I’m strongly of the opinion that such countermeasures only frustrate the law-abiding and don’t bother pirates in the slightest, or are a mere inconvenience at worst.

    However, that all said, some elements of the DMCA are indispensable in the modern Internet, notably 17 USC §512 (the take-down provisions) along with 47 USC §230 (publisher immunity against defamation by 3rd parties):

    Do note that this was before Facebook, Twitter, and YouTube had even been founded

    Part of the reason for that is because prior to the enactment of the DMCA, platforms like FB, YT etc would have been directly liable for infringing content by virtue of hosting the content, even though they never knowingly put it there.

    Without §512, their business models along with those of the likes of wordpress.com would have been unviable, so it was not until such laws were introduced that we got the rich variety of social media platforms that we now have (whether there’s actually anything of interest on them is another matter altogether).

    So as much as I dislike some aspects of the DMCA, some of it has actually done some good and all of it is positively tame compared with the failed SOPA and PIPA bids. Be glad that those atrocities got nowhere, because the Internet would be a very different place had either of them been passed into law.

    • Falkvinge

      Part of the reason for that is because prior to the enactment of the DMCA, platforms like FB, YT etc would have been directly liable for infringing content by virtue of hosting the content, even though they never knowingly put it there.

      This is not entirely true.

      While it can be argued that the legal situation was unclear before this, and the copyright industry did indeed argue this — a lot — in order to get this law passed, what you’re referring to is known as the Messenger Immunity.

      It’s what allows the carrier of a message to do so without fear, and it did not appear with the DMCA or EUCD; it has been a bedrock legal principle since the Roman Empire.

      • It’s what allows the carrier of a message to do so without fear, and it did not appear with the DMCA or EUCD; it has been a bedrock legal principle since the Roman Empire.

        Except the US is a common-law system, not derived from Roman civil-law. Do you know of any case law that effected stare decisis for “messenger immunity”?

        And if you do, would it still hold up given the difference between passing a copy of a message that somebody else made and passing a copy that you made (by virtue of storing it on your servers)?

        In any case, the uncertainty would have been sufficient to dampen if not completely suppress the sort of Internet services we now have, so it’s largely a moot point whether messenger immunity enjoys stare decisis — nobody wants to be the guinea pig to find out.