Quote:
Originally Posted by ApK
It most certainly does, but fair use has nothing to do with this issue.
Fair use concerns how you may use someone else's copyrighted material. For example, can you reprint part of a copyrighted book in a review? Fair use doctrine says you probably can, and it does not matter whether that material came from a hardback from the book store, or a borrowed library e-book.
As the DMCA indicates, and the fifth circuit court recently made clear, the provision in the law that prohibits cirvumventing DRM only applies if that circumvention is for the purpose of a COPYRIGHT violation. Since you HAVE the right to read your copy of the borrowed ebook for x days, then stripping DRM ONLY for the purpose of enabling the rights you are entitled to is NOT a violation of the law.
No one is endorsing or suggesting using any copyrighted material in a manner that violates copyright.
I've said this before, and we've cited the law and the court decision elsewhere more than once.
ApK
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Yes, the Fifth Circuit’s decision has been cited and discussed elsewhere multiple times since it was originally made in July 2010.
But no one seems to have discussed that
on September 20, the Fifth Circuit issued a revised opinion in that case. In its new decision, it found that DRM had not been circumvented and hence made no finding on DRM circumvention.
More importantly, on December 14, 2010,
the Ninth Circuit found (
http://www.ca9.uscourts.gov/datastor...4/09-15932.pdf)
that DRM circumvention is prohibited even if there is NO copyright violation. In the decision, the Ninth Circuit states:
In § 1201(a), Congress was particularly concerned with encouraging copyright owners to make their works available in digital formats such as “on-demand” or “pay-per-view,” which allow consumers effectively to “borrow” a copy of the work for a limited time or a limited number of uses. As the House Commerce Committee explained:
[A]n increasing number of intellectual property works are being distributed using a “client-server” model, where the work is effectively “borrowed” by the user (e.g., infrequent users of expensive software purchase a certain number of uses, or viewers watch a movie on a pay-per-view basis). To operate in this environment, content providers will need both the technology to make new uses possible and the legal framework to ensure they can protect their work from piracy.
So the intent of Congress was to prohibit the circumvention of DRM on "borrowed" items and the Ninth Circuit says their wording used is sufficiently plain and clear to give effect to that intent.
In footnote 10, the Ninth Circuit quotes the US Copyright opinion that fair use is not a defense to a violation of § 1201. In footnote 12 the Ninth Circuit
"leave[s] open the question whether fair use might serve as an affirmative defense to a prima facie violation of § 1201".
So there is no case law on whether fair use is a defence to DRM circumvention.
JL