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Originally Posted by sircastor
This is a simple legal technicality, but the DMCA does not specify the nature of the material that is being protected, only the protection scheme. I wonder if you are allowed to break a protection scheme which (as a member of the public) you have some ownership of the content therein...
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§ 1201. Circumvention of copyright protection systems
(a) Violations Regarding Circumvention of Technological Measures.—
(1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
(underline added)
§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (omitting listing)
Taken together, it seems clear the the DMCA only protects work in copyright. So if B&N merely goes over to Project Gutenberg, downloads Pride & Prejudice, wraps it in DRM and sells it for a buck, defeating the DRM on that specific book is probably not a violation.
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I suspect, regardless of the content, someone could effectively prosecute you in court for breaking their protection scheme, on that virtue alone.
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Doubtful, but possible. See above. The problem might be that the same DRM also protects other works which are actually still in copyright, so that the particular status of the work on which the DRM is being defeated might not make a difference.
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Furthermore, being in the public domain, I don't think B&N has any responsibility to ensure your ability to copy/move/distribute the material (as with GPL.) If that's the case, then why get up in arms about it? They have as much right as we do to mess around with it...
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That's the real problem. B&N is asserting, through DRM, a
greater right than the public effectively has. No member of the public has the right to appropriate to himself public domain material without using it in a way that itself is copyrightable.
DRM protection should be limited to copyrightable material. It should be illegal to apply DRM to material which is out of copyright, or to use DRM in a fashion that defeats fair use.
But because those things aren't illegal, publishers and retailers are in the process of repealing the benefits of the copyright scheme for the public. It's only public spirited people like those at Project Gutenberg who are doing anything to insure the continued existence of material which is out of copyright, in a fashion that permits the public benefit entailed in the copyright scheme.
What is going on, in my view, is the effective theft of the fair use and public domain rights of the public by the publishers. Whether or not DRM is actually a benefit to publishers is debatable, but it seems clear that the current practice is for practical purposes a diminishing of the public's rights.