[Xenophon]

I'd like to respond to these posts (note that I've left out a whole bunch of others...). Please remember that I am not a lawyer; what I write below is based on my layman's understanding of my possibly-flawed class notes from a graduate seminar on IP issues for Computer Scientists. If you need legal advice on which you can place reliance, please consult an IP lawyer. And remember that a good one will be expen$ive.

Originally Posted by gmw

Most of the rest of your post(s) I have provided my opinion of in one way or another already ... but the DMCA stuff: I think you are reading way more into that act (as relates to your benefit) than actually exists at this time.
[SNIP]

I have written advice of counsel from an eminent IP lawyer on this very subject. According to her presentation in the afore-mentioned graduate seminar, wallcraft is quite right that

Originally Posted by wallcraft

They had a choice about how to define fair use protections. For example, the act could have explicitly said that stripping DRM for personal use was ok. Actually, it does say that all fair use provisions still apply but this is contradicted by its practical provisions. The Librarian of Congress has the option, every three years, to make explicit fair use exceptions to the anti-circumvention provisions (e.g. for format shifting), but has never some close to doing so.

The (supposedly controlling) preamble to the DMCA explicitly states that nothing in the act should be construed to denigrate any fair-use rights, regardless of whether those rights have been articulated by a court or not. The practical provisions of the act appear to contradict that statement. No court has yet ruled on anything that would resolve this contradiction.

In Professor purple baboon's post (quoted below), I'd like to examine the two parts I've emphasized:

Originally Posted by Harmon

(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. [My emphasis added]

(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.) [My emphasis]

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. [My emphasis again]

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.

It is important to note that the regulations written by the Librarian of Congress neither address illegality, nor do they establish the limits of behavior that is protected as being fair use. Rather, they establish "safe harbor" for a subset of activities that are protected as fair use. The problem is that the fair use doctrine isn't a set of rules or laws; rather it is a defense against accusations of copyright violation that has been developed over many years by the Courts in an attempt to balance the rights of copyright holders against the rights of the public. Thus, fair use arguments proceed by reasoning from the extensive — but by no means comprehensive — case law.

The written advice-of-counsel that I paid for* on the subject of DRM removal tells me that (in the opinion of one eminent IP lawyer):

• Removing DRM from legally acquired content for personal use only is a legal exercise of my fair use rights;
• Distributing content for which I lack distribution rights is clearly a violation of relevant copyright laws (whether I've removed the DRM or not);
• Providing DRM-removing code to other people within US jurisdiction is almost certainly a felony under the DMCA;
• Telling others where to get such DRM-removing programs may or may not be a felony (depending on whether or not a Court decides that it falls under "providing");
• Explaining how to use DRM-removing programs that another person has somehow acquired on their own is almost certainly not a felony under the DMCA;
• Possession of DRM-removing programs is not in itself a violation of the DMCA (although distributing them or providing them to others probably is).

This advice-of-counsel has very little legal impact. Assuming, for the moment, that I were to find myself in court over DRM-removal, it might serve to establish that I sought out an expert opinion to guide me on how to stay within the bounds of the law, and so might (might!) establish lack of felonious intent. Beyond that, it's worth the paper it's printed on.

Xenophon

*She offered written legal advice on this specific topic to all attendees of her presentation at the high price of $0.25. Apparently there's some special point about having paid for the advice — I failed to note the reasoning behind that particular point.