MobileRead Forums - View Single Post - Appeals court case could legalize breaking DRM for ‘fair use’

charleski · 07-25-2010, 10:34 PM

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.

07-25-2010, 10:34 PM	#5
charleski Wizard Posts: 1,196 Karma: 1281258 Join Date: Sep 2009 Device: PRS-505	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.