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Old 08-24-2012, 03:28 AM   #61
pdurrant
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Originally Posted by Harmon View Post
(Ever notice how the express "the exception proves the rule" is ambiguous? "Proves" can mean "tests," and my suspicion is that the expression mean that the existence of an exception shows that there isn't a rule in the first place.)
Wikipedia puts it well.

"The phrase is derived from the medieval Latin legal principle exceptio probat regulam in casibus non exceptis ("the exception confirms the rule in cases not excepted"), a concept first proposed by Cicero in his defence of Lucius Cornelius Balbus.[1] This means a stated exception implies the existence of a rule to which it is the exception. The second part of Cicero's phrase, "in casibus non exceptis" or "in cases not excepted," is almost always missing from modern uses of the statement that "the exception proves the rule," which may contribute to frequent confusion and misuse of the phrase."

And so the fact the the Librarian of Congress has given permission for personal use of DRM removal software for ebooks in a certain case demonstrates that there is a general prohibition on doing so.

Since two of the US appeal courts have given different rulings on the matter, it's plainly not clear enough, and it may be that the US Supreme Court will eventually decide the matter.

Or, perhaps, the law will be repealed.... or the horse will sing.

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Old 08-24-2012, 08:49 AM   #62
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Originally Posted by pdurrant View Post
And so the fact the the Librarian of Congress has given permission for personal use of DRM removal software for ebooks in a certain case demonstrates that there is a general prohibition on doing so.
And in fact, if I'm reading the of the current LoC rule-making hearing transcripts correctly (and I may not be, since Harmon is certainly right about one thing: lawyers sure can obfuscate....) they have more than once said that a exemption rule is not needed to allow something that's not already prohibited. i.e., they are not going to make an exemption rule merely to affirm or clarify, which means if they agree with Harmon, and they read the law as to NOT prohibiting personal stripping for non infringing uses, then they are unlikely to make a rule that states it IS permitted, which would be a little disappointing, because a judge could still disagree if it ever came up, and a rule would effectively settle the matter. We'll see.
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Old 08-24-2012, 01:25 PM   #63
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Even thinking about how to crack DRM would likely be banned if big media had their way.

I'll point out (for the OP) that if he is given access to the book givers' account (username/password), he could likely use the tools. Or in the case of B&N books, you only really need the credit card on the B&N account at the time of download to remove the DRM (this is why I consider B&N's variant the least offensive of the DRM schemes).

That said, talking about this too much is against forum rules and maybe I've strayed over that limit. If so I'm sorry.
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Old 08-24-2012, 02:15 PM   #64
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... That said, talking about this too much is against forum rules and maybe I've strayed over that limit. If so I'm sorry.
Giving specific instructions or technical details (or links to such information) that could be used for theft of IP is prohibited. Just talking about the legality and morality of it is not forbidden (especially in a thread that is devoted to DRM such as this one). I am not aware of any limit on the quantity of words or on the quantity of posts on this subject being imposed by the forum rules.

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Old 08-24-2012, 02:31 PM   #65
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. I am not aware of any limit on the quantity of words or on the quantity of posts on this subject being imposed by the forum rules.
If the OP thinks it's too much, he can request the thread be closed.
If any one else thinks so, they'll probably post one of these:
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Old 08-24-2012, 03:25 PM   #66
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Originally Posted by Harmon View Post
On the basis that I'm a US lawyer who knows how to read statutory law such as the DCMA and the case law and knows how to understand what they really say, as opposed to a layman who thinks that he knows what a law means merely by reading it.
As a lawyer, can you say if Fair Use is trumped by the DMCA or is Fair Use still valid since it came before DMCA and nothing in the DMCA says it trumps Fair Use?
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Old 08-24-2012, 04:53 PM   #67
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It seems the ruling of the 5th circuit court of appeals would be relevant here... ? They said that DCMA couldn't be used to prosecute someone for bypassing encryption for the purposes of using or viewing something when doing so was not itself a breach of copyright.

I'm probably hacking the words up, but there are some quotes from the judge here:
http://www.courthousenews.com/2010/07/23/29099.htm

"Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act's) anti-circumvention provision,"

"The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."

"The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing."*

That remains standing as the last word from the US courts, AFAIK.
Actually, there's a fairly new issue that's cropped up recently thanks to Tor and John Scalzi. Tor was releasing John Scalzi's book Redshirts as their first DRM free (for sale) eBook and because some eBookstores were not setup correctly for this, they sold it (initially) with DRM. On John Scalzi's blog, he mentioned that if you bought a copy with DRM, you could either contact Tor to get it without DRM from Tor or you could strip the DRM and he linked (I forget if it was a direct link to the tools or to the blog to get the link to get the tools) so you could get the tools to strip the DRM. So the author (John Scalzi) gave permission for people to get the tools and use them to strip the DRM from his eBook. Does that then make the tools and stripping DRM actually legal since it was authorized by a rights holder (author and maybe publisher)?
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Old 08-24-2012, 04:59 PM   #68
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Originally Posted by GreenMonkey View Post
Even thinking about how to crack DRM would likely be banned if big media had their way.

I'll point out (for the OP) that if he is given access to the book givers' account (username/password), he could likely use the tools. Or in the case of B&N books, you only really need the credit card on the B&N account at the time of download to remove the DRM (this is why I consider B&N's variant the least offensive of the DRM schemes).
You also need the name used.
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Old 08-25-2012, 10:37 AM   #69
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Originally Posted by Fluribus View Post
I noticed that while DMCA seemed to prohibit the manufacture and distribution of stripping technology, it didn't mention possessing or using such technology. Thus those who create and provide the decryption program are criminal scum, however, those who use the decryption program are upstanding and decent folk.

I am not a lawyer and may have missed something. Was there anything else that I should have been looking for?
Well, in that first paragraph, you nailed it! I will add that if after you've decrypted it you distribute it to other people, you go back to being criminal scum.

On the second point, you should have remarked on my marvelously clear exposition & deep wisdom, but aside from that, you penetrated to the heart of the matter.
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Old 08-25-2012, 10:39 AM   #70
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Originally Posted by ApK View Post
And here again is my standard warning about getting legal advice from anonymous strangers on a public forum: Don't.
I'd put it differently: if you didn't pay for it, you shouldn't rely on it.

But I was challenged on the basis for my assertions, and I replied. That's legit, and should not be responded to by a weak version of the ad hominem argument.
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Old 08-25-2012, 04:51 PM   #71
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Originally Posted by pdurrant View Post
Wikipedia puts it well.

"The phrase is derived from the medieval Latin legal principle exceptio probat regulam in casibus non exceptis ("the exception confirms the rule in cases not excepted"), a concept first proposed by Cicero in his defence of Lucius Cornelius Balbus.[1] This means a stated exception implies the existence of a rule to which it is the exception. The second part of Cicero's phrase, "in casibus non exceptis" or "in cases not excepted," is almost always missing from modern uses of the statement that "the exception proves the rule," which may contribute to frequent confusion and misuse of the phrase."
Thanks - I didn't know that.

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And so the fact the the Librarian of Congress has given permission for personal use of DRM removal software for ebooks in a certain case demonstrates that there is a general prohibition on doing so.
No, it doesn't. For one thing, consider the second part of Cicero's phrase.

But even were that not the case, that's merely an argument, and often fails. For example, in the recent Obamacare decision, it turned out that the individual mandate was a "tax" for purposes of assessing its Constitutionality, but not a "tax" for purposes of the Anti-Injunction Act. (In essence, Justice Roberts applied the second part of Cicero's phrase.)

But what you are really trying to do is draw a negative implication from an administrative ruling. Most of the time, if you actually read the ruling, you find that the administrator is very careful to make it clear that such implications not be drawn, because they work both ways, sometimes with unforeseen consequences.

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Since two of the US appeal courts have given different rulings on the matter, it's plainly not clear enough, and it may be that the US Supreme Court will eventually decide the matter.
Simply put: No. None of the courts have given rulings on the matter we are talking about here. None. Nada.

Anything you read in a court opinion which appears to you to address the matter either doesn't, or if it does, does so merely as dicta, which has no legal standing. If I were writing a brief to a court on the question we are talking about here, and tried to tell the court that any of these cases bear on our question, the judge would think I wasn't a very good lawyer. There are some very few judges whose opinions are so respected or important that other judges will pay attention to their dicta (for example, Judge Posner on the 7th Circuit Court of Appeals) but none of the judges on these cases.

And if you think about it, you will realize that no court will ever address the question. There is simply nothing to be gained by a publisher bringing a lawsuit against an individual for stripping DRM from an ebook which the individual has legally acquired, and where the only use of the stripped file is personal use.

But there is a hell of a lot for the publishers to lose. Right now, they have everybody buffaloed into believing that it's illegal to strip DRM, anywhere, any time. Why would they risk getting a court opinion to the contrary?

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Or, perhaps, the law will be repealed.... or the horse will sing.
A singing horse probably violates the Mr. Ed clause. Particularly if it sings Happy Birthday.
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Old 08-25-2012, 05:07 PM   #72
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Originally Posted by JSWolf View Post
Actually, there's a fairly new issue that's cropped up recently thanks to Tor and John Scalzi. Tor was releasing John Scalzi's book Redshirts as their first DRM free (for sale) eBook and because some eBookstores were not setup correctly for this, they sold it (initially) with DRM. On John Scalzi's blog, he mentioned that if you bought a copy with DRM, you could either contact Tor to get it without DRM from Tor or you could strip the DRM and he linked (I forget if it was a direct link to the tools or to the blog to get the link to get the tools) so you could get the tools to strip the DRM. So the author (John Scalzi) gave permission for people to get the tools and use them to strip the DRM from his eBook. Does that then make the tools and stripping DRM actually legal since it was authorized by a rights holder (author and maybe publisher)?
Neither Scalzi nor his publisher can make something that is illegal (marketing DRM stripping tools) legal by permitting you to do it on their books.

But the law does not make it illegal to acquire DRM stripping tools, so if you acquire them, what Scalzi & the publisher are doing is telling you that they won't sue you for stripping. They could still actually sue you, but they would lose (1) because it's not illegal for you to strip the DRM from a book you legally acquired from them, and (2) even if that turned out not to be true, you could defend yourself under a legal doctrine called "detrimental reliance," basically meaning that you relied on their promise so they can't take it back.

Technically speaking, Scalzi might be violating the law for linking to the tools, since he's helping to distribute them in a commercial context. Certainly if I were his lawyer, I would tell him not to link. The way this should be handled is for everyone who bought a DRMed ebook to be sent a new, DRM free copy by the publisher.

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Old 08-25-2012, 05:32 PM   #73
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Originally Posted by ApK View Post
And in fact, if I'm reading the of the current LoC rule-making hearing transcripts correctly (and I may not be, since Harmon is certainly right about one thing: lawyers sure can obfuscate....) they have more than once said that a exemption rule is not needed to allow something that's not already prohibited. i.e., they are not going to make an exemption rule merely to affirm or clarify, which means if they agree with Harmon, and they read the law as to NOT prohibiting personal stripping for non infringing uses, then they are unlikely to make a rule that states it IS permitted, which would be a little disappointing, because a judge could still disagree if it ever came up, and a rule would effectively settle the matter. We'll see.
.
Yep, I think that's exactly correct.
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Old 08-25-2012, 05:45 PM   #74
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I wish. Unfortunately, after that, the 9th circuit court gave a different opinion.
The two contradictory court comments have been discussed here at some length.

That's why most of us tend to think it's a legal grey area at best

Personally, I think it's fair use to strip drm just to exercise the rights you already have, and that copyright law should not be used lock someone into a particular vendor.

ApK
This ruling arose in a commercial context, between competing commercial enterprises. That's a different situation than the ordinary person is in concerning DRM avoidance, and that makes a huge difference.

It's just like Prohibition, where you could make all the booze you wanted in your own house, and drink it yourself - in your own house. But couldn't sell it to your buddy in your own house, although you could give it to him for free - in your house. But not if you gave it to him for free, but were running a restaurant in your house and sold him a meal to accompany his drink. And not if you were renting a room to someone, and providing drinks and meals as part of the deal. And you had to pay tax on the booze, no matter whether you drank it yourself or illegally sold it or gave it away.

Think about that in terms of stripping DRM. It's the New Prohibition!

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Old 08-25-2012, 08:35 PM   #75
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This ruling arose in a commercial context, between competing commercial enterprises. That's a different situation than the ordinary person is in concerning DRM avoidance, and that makes a huge difference.
True enough, but it's the only judgments we have concerning the circumvention provision, and I'm certain that if an individual case ever came up, these decisions will be considered in the arguments.
I tend to agree with you that such a case is unlikely to ever come up, but I'd prefer certainty and less grey.

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It's just like Prohibition, where you could make all the booze you wanted in your own house
Says who? Even owning the stuff to make it was illegal. People stockpiled alcohol before prohibition went into effect so they would have stuff to drink after, since the drinking itself was indeed not illegal.

So, I think you're wrong about DRM, and Prohibition too. The circumvention provision in the DMCA says nothing about a limited scope of who it applies to.

And your only offered reason for stating otherwise -- "It's a lawyer thing, you wouldn't understand" -- is worthless.
On Prohibition, at least, if you are correct, certainly you can provide some evidence, if not explanation?

I am curious, however, about the part of the DMCA that says something about the law not infringing on other other rights.....
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