[Harmon]

Originally Posted by timezone

I believe someone offering a program to break DRM maybe breaking the law but the consumer using it to obtain fair use of the product may not be breaking the law. I wish there was a copyright lawyer here that could comment.

If what you are talking about is US law, you don't need a copyright lawyer. A plain vanilla lawyer, like me, will do.

You are right about the consumer, under US law. In order to violate copyright law by removing DRM, the person doing the removing has to be operating outside the boundary of "fair use." The reason is that the law, both civil and criminal, requires economic damage of some sort to the copyright holder in order for a violation to occur. Any consumer using a DRM breaking program to achieve fair use of copyrighted material has not in any way damaged the copyright holder economically. Therefore, that consumer is not breaking the law. Note, however, that the consumer had better be right about what constitutes "fair use." Otherwise, he could wind up paying civil damages.

The case of the person offering the program is a bit dicier, because it all depends on the facts of the situation. On the criminal side, you have to be able to show that the person offering the program is trying to make money. If you can't, then there's no criminal violation, but there might be a civil violation. Again, it all depends on whether the copyright holder can show that he's been damaged, economically, by the distribution of the program.

The other issue is the Pirate Bay case. If they provided servers where the copyrighted material ended up on its way between where the file was held and the person requesting the material then I believe that is enough to find them guilty. At the same time an AOL type of model or Internet provider operates like a bulletin board. They are not responsible for what people say or do. Just like the phone company is not liable for people discussing criminal activity on the phone. If Pirate Bay was just a peer to peer network without their own servers then I think they have a stronger case. The people sharing the illegal material would be the ones breaking the law.

If the defendants were being prosecuted under US law, it would not be enough to show that the defendants provided the servers where the copyrighted material ended up. The government would have to prove that the defendants willfully intended for that to happen. It probably would not even be enough for them to know that it happened and just not bother to do anything about it. It's the same for a peer to peer network - the question is not how the technology operates, it's what the operators intended to be happening.

But who knows what the law is in Sweden? Just having the files on the server might be enough for Swedish law, and it might even be enough to operate a peer-to-peer network.

Of course I really do not know the law and I am only offering these thoughts as items to consider as the debate rages on. Copyright infringement is a crime but I believe there are times when it gets tricky.

Copyright infringement is NOT a crime, unless you do it deliberately, knowing that it is an infringement, and furthermore, with the intention of making money from it. The criminal law (US Code, TITLE 17, CHAPTER 5, § 506) specifically provides that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright."

I have to say, for a guy who is only "offering thoughts," you are doing a pretty good job, and could be in danger of becoming a lawyer if you get too close to a law school.