> Yes, rightsholders should be forced to choose between legal and technical protection.
This is not a serious argument because there is no doubt that they would choose legal protection, since the technical protection would never hold. It doesn't even hold as it is, when circumventing it is illegal.
The answer is much simpler: There should be no legal prohibition on circumventing technical protection. It's completely inane. If the circumvention is happening in order to infringe copyright then the infringement is already unlawful and doesn't have to be separately unlawful as a circumvention. Whereas if the circumvention is happening in order to exercise fair use or because the DRM system is restricting a work no longer under copyright, it should certainly not be illegal to circumvent it then.
So it has no legitimate purpose. Either the technical measure holds on its own (unlikely), or the legal protection should be coterminous with any resulting infringement and the technical measure should be irrelevant.
The idea wasn't to make infringement more illegal, it was to take DRM removal tools off the market. There were already theories of secondary liability - i.e. "contributory infringement" - for aiding someone in an infringement, but the courts had refused to apply them to new copying technologies[0]. Copyright owners also hoped that this would make player vendors obedient to them far beyond what the law actually mandated.
In this respect, DMCA 1201 has been fantastically successful at terrorizing basically everyone into overcomplying. There's no concrete definition of what a copy protection scheme actually is[2], so you can point to any undesirable antifeature of a product and call that DRM. This is pure catnip to gaslighting control freak companies like Apple.
For what it's worth, if you put something uncopyrightable under a DMCA 1201 technical protection measure, it holds no legal value[1]. I imagine this would also apply to public domain works, so you can legally decrypt them. Problem is, I struggle to see a legal way to sell the tools necessary to decrypt such works.
[0] I'm specifically referring to the Betamax case, though that one was less "you're selling piracy tools" and more "you're telling people to go pirate movies". The Grokster case would partially overturn this, so you can get contributory liability for advertising infringing use cases of your software (aka "inducement"), independent of DMCA 1201.
I suspect that if inducement was a valid theory of liability in the 80s, we wouldn't have seen such a huge, cross-industry push to enact DMCA 1201. People selling cracks would be legally liable under the inducement theory, but we wouldn't have a blanket ban on tools that could be used lawfully, like, say, tools that let you defeat parts pairing.
[1] This, oddly enough, had to be proven in court with cases about garage door openers and printer cartridges, which took almost a decade to resolve.
[2] The original law did codify existing DRM schemes (notably Macrovision, which it spends whole pages defining), but none of those are relevant today.
> Copyright owners also hoped that this would make player vendors obedient to them far beyond what the law actually mandated.
> This is pure catnip to gaslighting control freak companies like Apple.
But this is exactly why it needs to be repealed. Its stated purpose is a farce and its true purpose is an injustice.
> The Grokster case would partially overturn this, so you can get contributory liability for advertising infringing use cases of your software (aka "inducement"), independent of DMCA 1201.
Which seems some combination of useless and unreasonable. Okay, so now Bram Cohen is diligent to never advertise BitTorrent for infringement, and then doesn't get sued because it has substantial non-infringing uses. But Grokster had non-infringing uses too, and many people still use BitTorrent for copyright infringement, so it seems like all the decision does is bring about censorship.
For example, what happens if an employee of a tech company wants to come out as a proponent of the Pirate Party, advocate abolishing copyright and describe how advantageous the company's products could be to people without it? Isn't that just core political censorship, since it could get their company sued? Meanwhile the same tool is legal as long as they don't do that, so the only difference is the expression of political speech.
> Problem is, I struggle to see a legal way to sell the tools necessary to decrypt such works.
The other problem is, what does that even mean?
Suppose I put a copyrighted work in a box and screw it shut. Is a screw driver now a circumvention device? It has uses beyond copyright infringement, but as soon as anybody uses CSS on a DVD of a public domain film, so does DeCSS.
This is not a serious argument because there is no doubt that they would choose legal protection, since the technical protection would never hold. It doesn't even hold as it is, when circumventing it is illegal.
The answer is much simpler: There should be no legal prohibition on circumventing technical protection. It's completely inane. If the circumvention is happening in order to infringe copyright then the infringement is already unlawful and doesn't have to be separately unlawful as a circumvention. Whereas if the circumvention is happening in order to exercise fair use or because the DRM system is restricting a work no longer under copyright, it should certainly not be illegal to circumvent it then.
So it has no legitimate purpose. Either the technical measure holds on its own (unlikely), or the legal protection should be coterminous with any resulting infringement and the technical measure should be irrelevant.