Quote:
Originally Posted by Alexander Turcic
Fine, you don't want to. Bye then.
|
Ahhh. The power of moderation.
This will run a little long I think, and since Scotty appears to be banned it may even be preaching to the choir, but I think it was Scotty who fails to understand the DRM and the DMCA. The Copyright Act contains exceptions which can be found in Sections 107-122 and is where you will find the references to fair use. There are also exceptions to the DMCA that are not specifically enumerated in statute. As is common here in the US, the courts have taken to interpretation of the DMCA and the scope its provisions should have.
In 2004, in Chamberlain v. Skylink, the 7th Circuit upheld a lower court ruling that the DMCA did not apply to garage door openers. See Chamberlain Group, Inc. v. Skylink Techs., Inc., 292 F. Supp. 2d 1040 (N.D. Ill 2003); aff’d, 381 F.3d 1178 (Fed Cir. 2004).
The federal court held that:
“The DMCA does not create a new property right for copyright owners. Nor, for that matter, does it divest the public of the property rights that the Copyright Act has long granted to the public. The anti-circumvention and anti-trafficking provisions of the DMCA create new grounds of liability. A copyright owner seeking to impose liability on an accused circumventor must demonstrate a reasonable relationship between the circumvention at issue and a use relating to a property right for which the Copyright Act permits the copyright owner to withhold authorization-as well as notice that authorization was withheld.”
This was reasserted in Storage Technology Corp. v. Custom Hardware Engineering & Consulting, 421 F.3d 1307 (Fed Cir. 2005), where the court held that circumvention must be related to a protectible copyright interest
Under this case, the court held that "A copyright owner alleging a violation of section 1201(a) consequently must prove that the circumvention of the technological measure either 'infringes or facilitates infringing a right protected by the Copyright Act.'"
Because the Court held that Custom Hardware's activities were not an infringement of copyright based on an exception for computer programs in Section 117 of the Copyright Act, the DMCA claim thereby failed. This suggests that if a technological control were circumvented for a noninfringing personal or fair use, the DMCA circumvention could be permissible.
The court went on to say that "The activation of the maintenance code may violate StorageTek's contractual rights vis-a-vis its customers, but those rights are not the rights protected by copyright law." This doesn't protect someone for a contractual suit based on violation of the TOS, but it would preclude the use of the breach of the TOS as a basis for a DMCA violation.
None of this really gives any finality to the ultimate question here because there still exists a valid decision in Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000); Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), which is the now original test of the DMCA where the defendant was enjoined from posting a link to DeCSS which stripped DVD's of their copy protection allowing personal/fair use. Because there is some question as to what the current law really means, I can understand Mobileread's decision not to fight the takedown notice. Let someone with deeper pockets fight the battle.
For what it is worth, the Feds are in the process of conducting the rulemaking proceedings required under DMCA called the Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works. The public hearings on the requested additions to the enumerated exemptions are to be held as follows:
Palo Alto, California on Friday, May 1, 2009, at 9:00 a.m.
Washington, DC on Wednesday, May 6, 2009, Thursday, May 7, 2009, and
Friday, May 8, 2009, at 10:00 a.m.
Requests to testify must be received by 5:00 p.m. E.D.T. on Friday, April 3,
2009.
If you are interested in what exemptions are being considered you can read the requests at
http://www.copyright.gov/1201/.