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Old 01-05-2011, 06:59 PM   #160
Harmon
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Quote:
Originally Posted by HarryT View Post
I base my view on the comments made by the judge in the "RealNetworks, Inc. v. DVD Copy Control Association, Inc." 641 F. Supp. 2d 913 (2009), case.

As you know, this was a case in which RealNetworks sold a program called "RealDVD" which permitted users to make backup copies of DVD, bypassing the content scrambling system (CSS) DRM mechanism of DVDs in order to do so. The DVD Copy Control Association (DVD CCA) and RealNetworks mutually sued one another over this. The ruling of the court was that RealDVD violated both the anti-circumvention and anti-trafficking provision of the DMCA and breached the CSS licensing agreement with DVD CCA.

The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.
Okay, now let me try and explain how you are misreading this case and misunderstanding the comments made by the judge.

This case involved a lawsuit brought by Realnetworks (which I will call "Real" because that's what the opinion does) as a kind of pre-emptive strike against a number of parties who sell encrypted DVDs. What Real was trying to do was to get the Court to say that a software program it made did not violate the DMCA. Real did not want to go out and sell the product, only to have to pay over its profits later on when it got sued.

If you look at the parts of the opinion numbered 86 and 87, you will see what the parties were arguing about in terms of the DMCA, and what portion of the DMCA the judge was interpreting. They were sections 1201(a)(2) and 1201(b)(1). These two subsections involve "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof".

So the first point you have to understand is that anything that the judge wrote in the opinion must be understood in relationship to the operation of those two sections, NOT section 1201(a)(1).

Now, what did the judge actually decide? She decided that Real was in violation of those two sections. Because Real was producing products which the DMCA says cannot be manufactured or offered for sale. You will see this at the end of parts 97 and 101.

At that point, she could have just stopped. She's given her decision. But one of the reasons judges write opinions is to explain why the loser's arguments didn't work. So the judge keeps going in order to knock down Real's arguments. Remember, she's doing this in the context of (a)(2) and (b)(1), not (a)(1).

So now, we get to Section D of the opinion, where the judge is addressing one of Real's arguments. In part 112, the judge lumps together some of the arguments and calls them "fair use" arguments. Basically, Real is arguing that its product is okay because consumers can use it to exercise their fair use rights.

The judge's answer to that is in part 115, where she says "Real is correct that Congress did not intend to regulate the conduct of individual users with authorized access to copyrighted works, since their liability was controlled by the existing law of copyright infringement and fair use. In this sense, there is a "user exemption" implicitly recognized in the DMCA for the fair use of copyrighted works." (my underlining.)

(Remember when I told you in another post that the DCMA does not need an exemption for someone who owns a copy of an ebook because the law doesn't prohibit that user from stripping DRM? This is what the judge is saying.)

But now, let us move smartly along to part 116. This is a critical paragraph for our purposes, because the judge points out that Real cannot rely on "fair use" because fair use doesn't apply to "traffickers" like Real, and so she doesn't need to decide anything about "fair use" anyway in order to decide this case.

So anything she says about "fair use" is what we lawyers call "dicta." That means "an interesting observation by a judge, but with no binding effect on anyone." She could have stopped then, but she goes on to point out out at the end of part 116, quoting another court, that the "technologically unsophisticated person" is screwed by the DCMA - the negative implication being that someone who knows what they are doing is NOT so screwed. And to drive the point home, she points out in part 118 that another court has said that "[W]hile it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention."

So now, to what you said about what the judge said:

Quote:
The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.
That is NOT what the judge said. What she said was if you traffic in DRM mechanisms, you can't rely on "fair use" by a customer/end consumer as a defense. That is, Real cannot use the "fair use" defense. Beyond that, although she didn't have to, the judge says that it looks to her like the consumer actually can use that defense.

Now, do you see why your reliance on this case is not proper? From a legal point of view, it does not have anything to do with the section of the DMCA you are pointing to in order to support your position. But to the extent that the judge says anything that MIGHT have something to do with that section, what she says is that the law is NOT aimed at the consumer - i.e., the owner of the DVD (or in our case, the ebook.)

Your mistake is understandable, because your reading of section 1201(a)(1), on its face, seems reasonable. But what non-lawyers do not understand is that a particular section has to be read in the context of the entire law, and that sometimes what appears to be the "plain meaning" of a section is not the real meaning when read in context. And that is what is going on here.

Last edited by Harmon; 01-07-2011 at 02:02 AM. Reason: I'm a little compulsive about correcting format & spelling & grammatical errors in what I write...
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