Quote:
Originally Posted by gmw
So if you are Professor Purple Gorilla then I can see where the DMCA is preserving your rights, but if you are just a Gorilla-on-the-Street, like myself, I have trouble seeing where the DMCA is doing anything you.
Disclaimer: AFAICT properly understanding the source material of the DMCA means detailed cross-referencing with the US copyright law. I cannot claim to have done that.
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(That's Professor Purple BABOON, thank you very much!)
You have to think of the DMCA as a kind of shell enclosing the copyright act. It does not change the copyright act. Rather, it is an attempt to deal with copyright as it already exists in an electronic environment, based on the premise (illusionary or otherwise) that DRM can be used to accomplish that objective.
The key to understanding the DCMA is not thinking of it in terms of DRM, though. It's thinking of it in terms of the tools which can strip DRM. Those tools effectively eliminate DRM if they are allowed to be widely distributed. That's why when you dig into the DCMA, it turns out that it is very concerned with the distribution of those tools.
For instance, it is perfectly legal for me to strip DRM from my lawfully acquired ebook, but it is not legal for you to sell me the tools to do the stripping. It is also not legal for me to pay you to strip the DRM for me. It might not be legal for you to simply give me the tools to do the stripping - I kind of think it actually is legal but I'm not entirely confident of that conclusion.
(There is actually a close analogy to the DMCA in US history, namely, the Volsted Act - aka "Prohibition." Most people think that you couldn't drink liquor during prohibition. However, under Prohibition, it was legal for someone to make and consume his own booze. BUT: it was not legal to transport it. So you could make your bathtub gin in your house, and sit on the porch in full view of the cops and get snockered. You could invite your neighbor to join you. Heck, you could invite the cop. Nothing illegal about it, so long as you didn't sell it to your neighbor. (Of course, the cop drank free anyway.) But if you took ("transported") your glass of gin over to your neighbor's house, the cop could arrest you. If you charged your neighbor for his drink at your house, the cop could arrest you. Same thing with DRM - strip it all you want "in your own house," i.e. on your own ebook. Hand over your off-brand EBR to your friend and let him read the stripped file. No problem. But don't sell the file. Don't upload it to the internet so anyone can download a copy.)
The ultimate point of the DMCA is not that it changes fair use or anything else under copyright law. The problem is to
preserve the rights of the copyright holder through the use of DRM, while
also preserving the rights of the public. The mechanism to accomplish this is to make it illegal to strip DRM
in those instances in which the stripped file is used in a fashion that violates the copyright holder's rights. But that mechanism introduces all kinds of practical problems in those situations where the public has to strip DRM in order to exercise fair use rights which already exist under the copyright law.
And that's where the Librarian comes in - basically, Congress has handed off to the Librarian the authority to write regulations dealing with those practical problems.
But you are correct in observing that if you are the baboon on the street, the DMCA has the practical effect of thwarting your fair use rights, even though as a matter of law, it does not. And what's worse is that copyright holders are aggressively using the practicalities to thwart the fair use right that, nominally, the public still has. Essentially, copyright holders (in the form of corporations like Disney) want, as a practical matter, to own ALL the rights to the product forever, even though copyright law is just a limited grant of those rights for a specific period.