FTC: We'll "come calling" about deceptive DRM

[Shaggy]

Originally Posted by bill_mchale

The basic problem is that fair use is by definition a nebulous concept. How do you tell consumers what they can or can't do with a copyrighted text unless it is a case the courts have already taken up?

Not to mention that they're already being inundated with propaganda by the industry trying to convince them that they have a lot less rights than they really do.

[Xenophon]

Originally Posted by bill_mchale

The basic problem is that fair use is by definition a nebulous concept. How do you tell consumers what they can or can't do with a copyrighted text unless it is a case the courts have already taken up?

--
Bill

Bill is exactly correct on this. Fair Use is a concept that has arisen entirely through case-law; it is not found in written statute. This means that we know some examples (because courts have ruled on them). Similarly, the courts have said that fair use rights extend beyond those specifically identified in particular court cases... but how far do they go? What is "inside the line" of fair use, and what is not? These questions typically get answered only through litigation and court rulings.

We do, however, know a few other interesting things. For example, companies are not allowed to invoke the DMCA to prohibit uses of their products that were not already prohibited via ordinary copyright law -- at least in two Federal circuit courts. There's no ruling yet in the others, and the Supremes haven't spoken, so those cases are not yet precedent in the rest of the country.

We also know that contracts may place restrictions that go beyond copyright -- but only if they pass all the legal tests for being valid contracts, which standard is (probably? possibly???) not met by click-wrap, shrink-wrap, and web-site terms-of-use 'contracts.' The parenthesized weasel-words are there because, once again, there are some cases that seem indicative in some circuit courts but there are not yet any perfectly clear precedents.

Xenophon

P.S. As a reminder -- circuit courts sometimes use rulings from other circuits (or even the same level in their own circuit) as precedent, but are not bound to do so. Appeals court rulings bind all the lower courts in that circuit, but may or may not be treated as binding precedent in other circuits. The Supreme Court sorts out the conflicts if and when they deem that the confusion has gotten too bad (and there is a suitable case before them in which to address the issue).

P.P.S. I am not a lawyer and this is not legal advice. Should you need advice on which you may place reliance, please consult a real lawyer. Your mileage may vary. Past performance is not a guarantee of future results...

[=X=]

Originally Posted by bill_mchale

While the FTC can't make DRM illegal, .

--
Bill

Sure they can they made it illegal for software.
=X=

[bill_mchale]

Originally Posted by =X=

Sure they can they made it illegal for software.
=X=

Really? Last I checked, there was still a l hardcoded limit on the number of machines I could install Windows on.

Ultimately, I think they can interpret existing law, and show where DRM is legal and when it is not, but it can't make DRM itself illegal (Particularly since the DCMA more or makes it legal since it makes it illegal to circumvent DRM).

--
Bill

[Shaggy]

Originally Posted by bill_mchale

Really?

No. I think =X= is confused.

[=X=]

Originally Posted by bill_mchale

Really? Last I checked, there was still a l hardcoded limit on the number of machines I could install Windows on.

Ultimately, I think they can interpret existing law, and show where DRM is legal and when it is not, but it can't make DRM itself illegal (Particularly since the DCMA more or makes it legal since it makes it illegal to circumvent DRM).

--
Bill

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=

[purl4peace]

I have a question:

LONG before Kindle was even a twinkle in Amazon's eye, didn't they sell eBooks (mobi format) and then a year later, pulled the plug on those eBooks (so that anyone that had purchased those books were left with no way to access them)?

If so, I wish someone would bring that up at the FTC hearing...

[EowynCarter]

French law is a mess for that.

At fist, we just had a right to private copy. Nice enough.

Then, the DADVSI came along adding a "DRM can't be overriden under no condition whatsoever".
Private copy becomes illegal, given the fact that all the stuff you buy is with DRM. And weird fact, we are still paying taxes to have said right to copy....

Then, the april (it's a french free software foundation), had a yell on that one. (As such a thing as reading encrypted DVD had become illegal :O ). -> Fine, getting rid of DRM is OK for interoperability reasons.

As a result, getting rid of drm to read on my drm proof reader is illegal. Doing so to read on my linux-only laptop isn't

Sometimes, i think we have it bad, but at least we're in a country where reading dvd or mp3 with linux is not illegal. (Not that i would hesitate a second, where i living in the US)

[Shaggy]

Originally Posted by =X=

I said DRM was illegal for software.

Not that I've ever heard. Do you have a source for that information?

[Xenophon]

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=

"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.

[bill_mchale]

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=

Ummm.. what exactly do you think DRM is? About 4 years ago, the hard drive on my computer went up; Rather than buy a new computer, I bought and installed a new Hard Drive. I then installed Windows XP from the installation Disk that came with my computer. Even though I had the original license serial number, and was installing it on the same computer as it was before, I had to spend 30 minutes on the phone with Microsoft before I could get Windows fully operational because of the built in DRM. Thats DRM.

As others have pointed out, there is no Fair Use Act, and the DMCA makes it illegal to circumvent DRM (and since it is illegal to circumvent it, it is hard to argue that DRM itself is illegal).

--
Bill