kiriamaya: (Default)
[personal profile] kiriamaya
(Disclaimer: I am not a lawyer, and what follows is opinion and not legal advice.)

A Federal court has ruled that circumventing DRM for non-copyright-infringing purposes is legal! (The title of the article is a little misleading, as the ruling appears to be broader than just fair use.)

Before this, under the anti-circumvention provisions of the DMCA, copyright holders basically had the power to write their own laws. It didn't matter if you wanted to do something (like, say, use a screen reader to read an e-book) that was otherwise legal; if you had to circumvent copy protection to do it, you could get sued and/or prosecuted for trying. (There were a handful of exceptions, but they were never nearly enough.) This resulted in a lot of useful technologies being either banned, or so restricted that they were practically useless.

Well, this new ruling looks like it may change all that:
"No person shall circumvent a technological measure that effectively controls access to a work protected under this title," the law says (we added the italics). The "under this title" refers to Title 17—the entirety of US copyright law.

In other words, just circumventing the technology isn't enough to get into trouble with the DMCA. The circumvention must lead to some violation of copyright.

"MGE [the plaintiff in this case] advocates too broad a definition of 'access'," the Fifth Circuit explained. "Their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of 'fair use' permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners."
Common sense at last! Yay!

I mean, it may not be time to celebrate just yet, as I fully expect this to either be appealed to the Supreme Court now, or end up there at a later date as part of some other case. The big corps that have benefited from overbroad interpretations of "access" for the past twelve years aren't going to give up their power so easily. Still, the fact that there is now even a small chance in hell that some measure of consumer rights will return to us is hugely encouraging to me.
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November 2012

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