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Old 07-25-2010, 08:14 PM   #1
Robotech_Master
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Appeals court case could legalize breaking DRM for ‘fair use’

At TeleRead, I report on a 5th circuit appeals court case that literally has the potential to redefine the way the DMCA is interpreted, assuming a higher court doesn't reverse it. A quote from the decision, bold emphasis mine:
Quote:
However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision.
That's basically the exact opposite of how the DMCA has been interpreted all this time: that it's illegal to break DRM even for an otherwise fair use.

Fingers crossed that the decision stands!

Last edited by Robotech_Master; 07-25-2010 at 08:43 PM.
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Old 07-25-2010, 08:40 PM   #2
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Oh, AMEN to that!
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Old 07-25-2010, 08:50 PM   #3
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I'm not a copyright lawyer, but it doesn't appear that is what the case says. A code was required to run certain software. Like the code required to activate the radio in an old BMW after the battery failed. It was not in place to protect something given protection by the DMCA. But the DMCA specifically prohibits "decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Id. § 1201(a)(3)(A). While the use of a PID to read a book you have purchased would be similar, removing protection altogether is not.

According to this case, I could keep a copy of my PID so that I could read my book on another reader that could read mobi books, but I could not alter the book so that I could read it in a different format. I continue to believe that it is unlikely that any case will be brought against someone who removes encryption on books they bought, so long as they do not pass those books on or otherwise violate the copyright. The problem is there are no damages suffered by the copyright holder. The person who provides the software, however, could be prosecuted under the DMCA for providing the decryption software.

Last edited by Sydney's Mom; 07-25-2010 at 08:59 PM.
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Old 07-25-2010, 08:52 PM   #4
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Syndney's Mom, the section of the opinion I quoted seems pretty clear on what the DMCA is supposed to allow, per this judge: it is supposed to allow fair use. Just breaking the DRM isn't supposed to trigger the anti-circumvention restriction.
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Old 07-25-2010, 10:34 PM   #5
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It's certainly an interesting case. But having read the judgement I can't help feeling that it will have little impact on the status of most common forms of DRM.

His decision is based on the idea that there's a distinction between accessing a work and the protection against copying afforded by the Copyright Act. It seems a critical element in his decision was that, "there is no encryption or other form of protection on the software itself to prevent copyright violations," and that the dongle was merely involved in a validation check that had to be passed before the software would run.

Frankly, I think his reasoning here is both sloppy and naive and he is placing far too much importance on the process of encryption. This form of simple hardware-key validation lock was a common form of software protection in several industries, though I think almost all employ some form of encryption these days merely to make them harder to crack. Encryption is not a magic bullet, and in fact all computer data is encrypted in some form (very few people are capable of reading raw binary code). The critical element lies not in the presence of encryption, but in how the keys needed to decrypt the data are managed. Still it's clear that, to this judge, encryption (such as that used by most forms of DRM) would indeed fall under the measures protected by the DMCA.

While I think his argument concerning the technical nature of the circumvention in this case is wrong, the judgement will stand for the simple reason that, as pointed out in the last two paragraphs of page 7, MGE failed to demonstrate that GE did, in fact, crack the software. They merely acquired a cracked version in the course of their purchase of PMI, which the DMCA doesn't prohibit.

So, while I hate DRM as much as anyone, sadly I don't think this judgement will help much in restoring the consumer property rights that the DMCA infringes. His remark about fair use is laudable, but the case in question did not involve fair use at all, and it's clearly implied that if the software had been encrypted then the DMCA would have applied.
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Old 07-26-2010, 06:08 AM   #6
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The music business went through this years ago and the publishing business has failed to learn the lessons from that. Their position is hurting them more and turning more and more people away from supporting them.
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Old 07-26-2010, 10:12 AM   #7
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Quote:
Originally Posted by Robotech_Master View Post
At TeleRead, I report on a 5th circuit appeals court case that literally has the potential to redefine the way the DMCA is interpreted, assuming a higher court doesn't reverse it. A quote from the decision, bold emphasis mine:
That's basically the exact opposite of how the DMCA has been interpreted all this time: that it's illegal to break DRM even for an otherwise fair use.

Fingers crossed that the decision stands!
Frabjulous day!!! (I live in the 5th circuit court jurisdiction. Until it's reversed, it's legal here, now!)
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Old 07-26-2010, 11:03 AM   #8
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Quote:
Originally Posted by stargazertony View Post
The music business went through this years ago and the publishing business has failed to learn the lessons from that. Their position is hurting them more and turning more and more people away from supporting them.
Agree! Publishers, and retailers like Amazon and B&N, keep angling for a larger piece of the pie when they should be working on making the whole pie bigger. Getting rid of DRM and making more ebooks available across more dedicated ereading devices would help.
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Old 07-26-2010, 11:15 AM   #9
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As with other issues with ebooks, this is, of course, a geographical issue !

a US solution for the US ....
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Old 07-26-2010, 11:20 AM   #10
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Until it's reversed, it's legal here, now!

No it's not. The judgement has no effect on fair-use at all.
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Old 07-26-2010, 12:01 PM   #11
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*fingers crossed*
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Old 07-26-2010, 12:04 PM   #12
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It's been made legal by the Library of Congress

http://www.boygeniusreport.com/2010/...n-your-iphone/

Read down to the press release, and bullet number six pertains to us!!
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Old 07-26-2010, 12:24 PM   #13
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Originally Posted by QueridaNegra View Post
It's been made legal by the Library of Congress

http://www.boygeniusreport.com/2010/...n-your-iphone/

Read down to the press release, and bullet number six pertains to us!!
OK!! Now this is FAR more significant, and does specifically exempt ebook DRM encryption from the DMCA. It's clearly aimed at enabling the use of commercial ebooks in devices that accommodate those with disabilities, though.

In the broader terms of fair-use, class 1, which only applies to DVDs using CSS, is probably the most important.
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Old 07-26-2010, 01:07 PM   #14
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The "fair use" exemption is not an "excuse" nor "permission" to use 100 per cent of one's works.
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Old 07-26-2010, 01:26 PM   #15
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Quote:
Originally Posted by Sydney's Mom View Post
But the DMCA specifically prohibits "decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Id. § 1201(a)(3)(A).
Does this mean that authors could give readers permission to bypass DRM for their books, regardless of what the publisher has done with them? The author is the copyright *owner*, even if he's sold distribution rights to someone else.
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