Quote:
Originally Posted by HarryT
But, with respect Harmon, if you remove DRM to avoid having to re-purchase a book for a different type of device, then you are doing so for reasons of "private financial gain", and hence you are committing an offence under the DMCA.
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First of all, the avoidance of a cost is not "gain." If it were, you would have to pay tax on it. Believe me, the IRS would tell you so.
"Gain" means "gain." It does not mean "avoiding expense." Particularly when construing a criminal statute.
Secondly, when you unpack the phrase "commercial advantage or private financial gain" it should be clear that what Congress was trying to do is criminalize the act of unDRMing a file and then trying to profit off of it in some fashion.
If Congress had wanted to adopt your meaning, all they had to do was use the words "commercial or private financial advantage." Arguably, that would stretch to the meaning you suggest. But instead, they used "commercial advantage or private financial
gain." The first phrase is aimed at business or business-like activity. The second is aimed at non-business activity. The first does not require any gain - there's a crime even if the activity has a loss, or is not intended to make money
per se, but to somehow secure a better position
visavis your competitors. The second does require gain. There's a crime even if there's not a business, as long as there is a gain.
As long as you are acting as a private person - that is, not in the context of a commercial activity - and are not attempting to profit by the stripping, you can strip DRM of books you own all you want, as far as the DMCA criminal provisions are concerned. In fact, it appears to me that you can do it as a favor for your friends as well. Depending on what you do & how you do it, you might run afoul of other copyright law, but not of the DMCA.
On the civil side of the DMCA, you could be sued, but I think you'd win, because the mere stripping of DRM is not enough. The plaintiff has to prove injury resulting from your stripping. As long as the stripping is within the context of "fair use," I don't see how a court could find any "injury." Removing DRM in order to read a book that you own is not in any way an injury to anyone.
The more I read this statute, the clearer this becomes. The other provisions of the law are aimed at setting up exceptions for activities that might otherwise fall under the concept of "commercial advantage" or where there might arguably be an injury under normal copyright law. The most interesting part is where the statute sets up a procedure for what regulators call a "safe harbor" by the Librarian of Congress. This appears to me to give the Librarian the ability to codify a good deal of copyright law.
I must confess that if you accept that DRM is a good thing - which I don't - then the DMCA is a pretty reasonable piece of legislation. The place where it falls down is in failing to state explicitly that it is not aimed at the private user stripping DRM for strictly personal purposes.