Friday, November 30, 2012

Copyright: Week 14 - DRM and DMCA

This is not legal advice. Leave audio feedback at (512) 686-6329.

Original Reading Schedule: 

November 27 – Copyright & Contract (Casebook pp. 605-608; 614-620; 629-639)

November 29 – Technological Protections for Copyrighted Works (Casebook pp. 657-670; 680-690)

Our schedule got messed up a bit because Professor Wong got sick, but I sticking to my topic for the week: DRM and the DMCA. Brian's critique might not come until after our class next Tuesday. This is, of course, coming out before the article on fair use and that is in part because fair use is such a huge topic and in part because of Thanksgiving.

I also want to address briefly why I am covering the DMCA again instead of the seemingly more pertinent issue of Creative Commons and contracts. The reason I am not tackling the contract issue is mainly twofold:
  1. contracts is an entire course (two courses if you include Sales) and thus covering the topic in a single post is a crazy proposition.
  2. I am taking Copyright Licensing next semester and can bring you better coverage once that has taken place.

That said, "An effective understanding of copyight law...requires an appreciation of the many dimensions of the intersection of copyright and contract" (Page 605). There are plenty of places to learn about contracts, but I don't spend much time collecting resources in the resources section. As always, if you want more resources, just let Brian and I know and we'll see what we can do!

THESIS FOR REBUTTAL: Technical interoperability should be a goal of copyright. DRM frustrates this.

Just to expand on this, I mean interoperability of file types as well, not just software interoperability. The courts have done a reasonable job of not allowing copyright (and the DMCA in particular) to get in the way of software interoperability. See Chamberlain v Skylink and Lexmark v Static Control Components. However, once that interoperability goes to entertainment, it somehow goes out the window. See Universal v. Reimerdes.

Based on this, you might expect me to say that DRM should be illegal. In fact, that was my first thesis for rebuttal. However, I had a hard time distinguishing DRM from general security measures since essentially all electronic communications are copyrighted (there's an argument that many tweets lack sufficient originality, but that's really here nor there at the moment). I'd hate to propose that individuals couldn't encrypt emails. I'm generally against secrecy of any kind, but getting rid of secrecy would get rid of whistleblowers and a lot of journalism. Now, what might say that if everything was in the open we wouldn't need whistleblowers, but just because something is not encrypted doesn't mean it's not secret. Imagine "company men" beating union workers behind closed doors. There might not be any encryption, but they are still trying to keep it a secret. Anybody that is telling a journalist about the beatings is likely going to want to keep their identity a secret. I'm obviously not the first one to come across this information freedom versus privacy dilemma, but I do think it is worth mentioning in the DRM discussion, because we have some serious line-drawing problems.

Where I would draw the line is to say that DRM was legal, but I'd allow circumvention for interoperability. That is to say, the Linux argument should have held the day for Reimerdes. This is not necessarily to say that I disagree with S.D.N.Y. as the DMCA is written and as case law holds. Eldred was after Reimerdes, so the First Amendment argument could have held more sway in Reimerdes, but Eldred suggests that had Reimerdes made it to SCOTUS they would have been deferential to Congress. It is hard to fault a district court for not wanting to be overturned.

That said, the current law around §12xx of the Copyright active (the anti-circumvention provisions of the DMCA) is slightly bizarre and who knows if Reimerdes would come out the same today. My gut says that Reimerdes falls into the Grokster "bad faith" type of case, but it's a bit different since one was copyright infringement and Reimerdes was purely a DMCA action.

Both the Federal Circuit and the 6th Circuit say that the DMCA doesn't prevent fair use. If that's the case, why does the Copyright Office need to issue exceptions? The Copyright Office exceptions clearly lead to bizarre results like you can jailbreak a phone, but not a tablet.

It is worth looking at the interoperability issue a little more closely. Windows and Apple users probably don't see this issue come up often, but having worked in IT since 2002 until starting law school, I've seen the issue arise on all platforms. On Windows, the first this that always comes up for me is Ardour, which is audio software available for Mac and GNU/Linux. Now, Ardour is free software, so if someone wanted to make a Windows version someone could.

While we try to keep things as tied to music here as reasonable, let me pause for a moment to lament that not all software is free software* and due to this GNU/Linux users cannot access Netflix and iTunes (which is particularly irritating due to iTunesU), but then I have to overcome any DRM issues. No thanks. While it's entirely possible me reverse engineering the Netflix DRM would be fair use, no one can tell me how to do the reverse engineering, because that would be "trafficking". While I personally would love to spend my time reverse engineering DRM, if I did it, I couldn't then share that information with the world. 

So, do I stand by my assertion that the DMCA as a whole does more good than harm? Yes. The fact of the matter is that under current law, patents often do much of the hindering of interoperability because there is no fair use in patent law. Even if we got rid of Copyright completely, there might still be issues with bringing Netflix and iTunes to GNU/Linux. I don't personally know what the Netflix/iTunes patent landscape looks like, but I'm suspicious. I'm suspicious because of things like the patents on the mp3 format and Apple's patent on podcasting. As Brian pointed out before, the DMCA has some serious issues, but let's not throw the baby out with the bathwater!

*There are a lot of issues about free software and DRM that unfortunately there is not time this semester to cover. I've changed up my schedule a bit and next semester I'll be taking Advanced Topics in IP: Current Issues in International IP, so perhaps we'll cover DRM issues in more depth in that class. Here seems as good a place as any to mention that I'll also be taking Personal Income Tax, Cybercrime, Trademarks and Deceptive Practices and Copyright Licensing. I had previously said I'd be writing about Copyright Licensing, but since "Current Issues in International IP" covers, well, current issues, it might be a more interesting topic. Maybe I'll mix it up a bit. Let me know if you have a preference!


DRM with Frederick Haber
Giant Robots, Circumvention, and the DMCA with Christin Hicks
Jailbreaking now legal under DMCA for smartphones, but not tablets
Jailbreaking is not a Crime. (well, actually, it is in some cases)