Thread: EPUB and DRM
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Old 10-21-2009, 03:50 PM   #42
Xenophon
curmudgeon
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Quote:
Originally Posted by Hellmark View Post
The means being used to remove most forms of DRM used currently, are not illegal. No DMCA violations.
To be pedantic about it, we do not yet know for sure whether or not "the means being used to remove most forms of DRM used currently" are legal. The DMCA is clear that creating, selling, or distributing* such tools is (at least potentially) a felony. When it comes to use of those tools, the DMCA is schizo at best. In one section it appears to say that use of DRM-removing tools is (or may be) a felony. In another section it appears to say that (paraphrasing here) nothing in the DMCA denigrates or removes any Fair Use rights** that existed before the DMCA.

Serious legal scholars differ*** on the question of which of those sections overrides the other. They even differ on the question of what each of those sections really means. All of which means that we won't know the legality for sure until either the congress clarifies by passing yet another law OR some court takes up a relevant case and provides a ruling (and that ruling goes through all possible appeals as well). Until one of these things comes to pass, confident statements about the legality (in the US) of DRM removal seem premature.

That said, I cannot believe that any District Attorney would bother bringing a DMCA case against an individual who stripped DRM from legitimately acquired content for personal use only. They'd be laughed out of the courtroom, and scolded in the press for wasting public funds! My opinion is that stripping DRM for personal use only will be found to be legal. It's certainly ethically OK in my book, and seems pretty safe as well. But remember to ensure that the authors and/or copyright owners get paid for their effort and investment -- don't "steal" (more properly "distribute without permission of copyright owner") books!

Xenophon
(who is NOT a lawyer)

*Depending on precise legal arguments (that I don't understand!) "distributing" such tools may (or may not) include linking to them, hosting them for download, telling someone else where to get them or how to use them, and/or who knows what else. Or not. Again, no court rulings on the subject to date.

**"Rights" is really the wrong term for "Fair Use." In US law, "Fair Use" is a defense against the charge of copyright violation, not a collection of rights. Fair use has never been defined in full by either congress or courts. Rather, it has grown from precedent set in quite a number of court cases. We know from these cases that certain things are "fair use" (because the court found them to be so). We also know that the cases to date do not exhaustively define the boundaries of fair use (because the courts are careful to rule only on the case before them, not on all possible fair use defenses).

***Oh boy do they differ! I took a graduate seminar in IP Law for Computer Scientists at Carnegie Mellon. One interesting aspect of the course was guest lectures by quite a few exceedingly eminent legal scholars on various aspects of the DMCA. They differed wildly on whether or not stripping DRM for personal use only is permitted under the DMCA. One went so far as to accept a token payment from interested students (a penny, IIRC) and to provide in return formal written advice-of-counsel that it's OK. Another quoted chapter and verse to demonstrate that it's a felony for sure (and that anyone who even thinks of stripping DRM is a pirate who will burn in H*ll for all eternity!). The others fell all over the spectrum in between. I think this demonstrates that it really isn't clear at all...

Last edited by Xenophon; 10-21-2009 at 03:51 PM. Reason: Emphasize "personal use only"
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