Quote:
Originally Posted by HarryT
Now it seems clear to me that if a private person, even for personal use, removes DRM, that person is "circumventing a technological measure", and hence is in violation of the above section 103 of the DMCA, are they not? If this is not so, please could you explain why not, since the above seems pretty "clear cut".
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Certainly. Stick with me - I spent three years in law school to learn this kind of stuff:
You are being misled by the meaning you are giving to the word "violation." The word "violation" does not mean "everything necessary to break the law." In the context of this statute, it means "the
first thing that has to be established" if you want to sue someone.
When a statute makes something either the basis for a civil action or a criminal charge, it does so by laying out what lawyers call the "elements" of the transgression involved. The "elements" are all of the things necessary to create the liability, whether civil or criminal.
This particular statute sets out the elements for two things:
The first involves when a private party can bring a civil lawsuit against another private party. This is called a "cause of action," and it is established by Section 103.
The second involves when the government can bring a criminal action against a private party. This is called a "criminal charge," and it is established by Section 104, but we aren't discussing that right now.
So, starting at the beginning:
Section 101(a) describes the
first element of a civil lawsuit, which it calls a "violation." It describes the physical action which is the first element necessary to establish civil. It is "necessary but not sufficient" for bringing a lawsuit.
Section 103 describes what is necessary, in
addition to a "violation," for someone to bring a
civil lawsuit. This additional element is an
injury, which is required by 103(a): "Any person
injured by a violation of section 1201..." No injury, no lawsuit.
This means that it takes a "violation"
plus an injury to give rise to liability by the person doing the violation to make Section 103 applicable.
So the question becomes, what does Section 103 mean by "injured?"
Well, in this particular statute, there is not a specification of what is meant by "injured." So the way you find out what "injured" means is by looking to see what the Court can do if it finds that an injury has occurred. And what we see is two things:
One is that the Court can assess
actual "damages" in the form of money. This tells us that "injured" means "financially damaged" in a way that can be measured, most likely, loss of profit.
But secondly, we find that the complaining party can ask for "statutory" damages. Statutory damages are normally awarded when the Court finds that the person bringing the lawsuit has been injured in some way, financially or otherwise, but in circumstances which make difficult or impossible to assign a financial value to the injury. So this tells us that "injured" also means "financially damaged" in a way that cannot be measured.
So now we know that the offended party can either prove actual monetary damage or claim what amounts to estimated damages, where the statute itself provides a minimum and maximum for such an estimate.
We turn to the facts of our ebook copying case. The ebook buyer of a DRMed ebook file circumvents the DRM in order to make a backup copy.
Is there a "violation" under the definition of 101(a). Yes indeed.
Is there an injury under 103(a)? What could it be? Well, perhaps it is that the buyer did not buy a second copy of the book to keep as a backup.
The question would be framed as "does the seller have a reasonable expectation that anyone buying one copy of an ebook will normally buy another copy if he or she wants a backup?" If so, the seller has been injured by the loss of profit; if not, no injury.
(This is a way of asking whether any
actual financial injury occurs, even though there is a hypothetical injury. The law does not compensate for hypothetical injuries.)
At this point, we have to look at the general law of copyright and the digital environment in which ebooks are produced.
First of all, we know that there is something called "fair use" which allows buyers to make various kinds of copies of copyrighted material. Since the DMCA does not seem to overrule general copyright law, it must be interpreted in the context of that law. The DMCA and general copyright law should be read
in para materia - a legal doctrine meaning "having the same purpose in mind" - with the general copyright law. And the general copyright law protects not only the creator's right to profit, but the user's right to "fair use" of the protected material.
Is it the normal and customary practice, in the digital environment, for consumers to back up items which they have purchased? Answer: yes indeed. If a consumer is wise, he or she buys some kind of program which backs up his or her entire hard drive. (I have one, don't you?)
It follows that making a backup copy does not result in an injury to the seller.
Because there is no injury, evading DRM to create a backup is not prohibited under the DMCA.