November 21, 2002

DMCA and leveraged Denial-Of-Service attacks

There's been much news about the DMCA being used to take-down leaked advertisements, by claiming the prices are copyrighted/trade secrets. Recently, I've been working on DMCA exemptions, so the following passage from the 2000 rulemaking results is fresh in my mind:

A related worry of commenters is that, in practice, section 1201(a)(1) will be used to ``lock up'' works unprotected by copyright. They predict that compilers of factual databases will have an incentive to impose a thin veneer of copyright on a database, by adding, for example, some graphics or an introduction, and thus take unfair advantage of the protection afforded by Section 1201. In addition, they fear that access to works such as databases, encyclopedias, and statistical reports, which are a mainstay of the educational and library communities, will become increasingly and prohibitively expensive. On the record developed in this proceeding, the need for such an exemption has not been demonstrated.


... the fear that 1201(a)(1)(A) will disadvantage users by ``locking up'' uncopyrightable material, while understandable, does not seem to be borne out in the record of this proceeding. Commenters have not provided evidence that uncopyrightable material is becoming more expensive or difficult to access since the enactment of Section 1201, nor have they shown that works of minimal copyright authorship are being attached to otherwise unprotectible material to take advantage of the 1201 prohibitions.

Now, the take-downs are not the same DMCA section. But I was struck by the fact that it is roughly the same problem. There are gradations in copyright, which matter in fair-use. But by, err, "circumventing" fair-use, the DMCA does away with all the balancing. All one needs now is the thinnest of copyright, e.g. pricing data or annotations - and the full fury of the DMCA can then be brought to bear.

By Seth Finkelstein | posted in dmca | on November 21, 2002 11:51 PM (Infothought permalink) | Followups

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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