Quote:
Originally Posted by =X=
I said DRM was illegal for software. I did not say the user had the right to pirate software or to violate the license agreement.
"DRM" on software is not legal because of the fair use act. We as consumers have the right to backup our software.
However the law was written lose enough so that software makes could add some sort of protection on their software such as password key, license keys, license servers, etc....
If you note on your example you have the ability to backup your software you just don't have the option to violate the license agreement.
=X=
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"Fair Use Act"???? Last I heard -- 2004 or so -- there was no such animal! There is the concept of fair use, as established via a long string of court rulings. And that concept has indeed been ruled to cover such activities as making a backup of your software. But note that most "DRM" doesn't interfere with making a backup -- that is, a bitwise copy -- of the software. Rather, it interferes with a variety of other uses that may fall under fair use (or not, it's hard to tell!).
The big problem with fair use is that
it isn't a right or an exception in statute. Rather, it is a
defense that you may use should you ever wind up in court. There's lots of precedent that establishes
some of the parameters of fair use. For example, backing up software is one of the examples that has been litigated. But the courts have consistently said that there are other as-yet-unarticulated examples of fair use not covered by the existing cases. This happens because the courts are generally unable to establish rulings that go beyond the specific case before them at the time. There is one exception to that: the Supreme Court sometimes articulates broad principles or rules that arise from cases they choose to hear. Lower courts, however, generally stick to the specifics of particular cases -- in part because going beyond those specifics is begging to be over-ruled by higher courts.
Over all, this is an area where US law is rather a mess. And no one has really pushed hard to get the Congress to clarify it, perhaps because all major players are afraid of being screwed by whatever the gang of 535 winds up writing into law. The seem to think "Better the mess we have now, than the results of Congressional 'expertise'!"
Xenophon
Obligatory disclaimer: I am not a lawyer and this is not legal advice. Should you need legal advice on which you may rely, please consult an actual lawyer who specializes in the appropriate area of law. The above explanation is based on my notes from a graduate seminar in IP law and Privacy a few years back. Any misunderstandings are mine, not those of the experts who instructed us.