4 ms·

It's not possible that it violated the DMCA because it would be fair use to copy legally purchased audio files to an iPod, regardless of vendor.

by gnu8 12y ago

tadfisher 12y ago
The DMCA has no exemption for "fair use". Fair use is a specific term, the meaning of which does not include being able to play any audio on hardware with copy-protection.
- brownbat 12y ago
  More specifically, the DMCA (in the relevant provision) covers bypassing technology that prevents copying. Copyright law covers copying itself. So if you bypass some encryption to copy something, we have to look at two different areas of law, one for the bypassing, one for the copying. Fair use provides some exemptions to the copying. DMCA exemptions are promulgated by the Library of Congress, developed in consultation with the Copyright Office and after public notice and comment periods, and updated every three years. DMCA exemptions are not automatically renewed, so the exemptions can change radically every three years. Public comments have frequently requested a catchall fair use exemption to the DMCA, ie, if the anti-circumvention tech was bypassed only in service of a fair use of a work, then there should be no violation of the DMCA. Such an exemption has been rejected so far, but could be adopted at some point in the future.
  - makomk 12y ago
    The DMCA covers bypassing technology that prevents the copying of protected works. I don't think it was ever intended to cover bypassing the parts that prevent you from using it to protect your own works from copying.
    - brownbat 12y ago
      This has actually been the subject of (depressing) scholarly research. "Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts' ability to exonerate them via the traditional defenses to copyright infringement." http://papers.ssrn.com/sol3/papers.cfm?abstract_id=844544 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=844544
- jahewson 12y ago
  Actually the case law means that the DMCA has been judged to have have an exemption for fair use [1]. Because neither Real nor their customers were trying to gain unauthorised access to copy-protected materials, it seems unlikely that their behaviour would be considered anti-circumvention. 1. http://arstechnica.com/information-technology/2010/07/court-breaking-drm-for-a-fair-use-is-legal/ http://arstechnica.com/information-technology/2010/07/court-...
  - ubernostrum 12y ago
    The MGE case is not the sort of victory you (and Ars) present it to be. It's actually remarkably narrow and doesn't gut the worst of the anti-circumvention provisions. In simple terms, imagine a box with a padlock on it. The DMCA says, roughly: * You're not allowed to examine the lock to figure out how to make a key for it. * You're not allowed to make a key for the lock. * If you somehow get a key for the lock, you're not allowed to use it. * If you somehow get a key for the lock, you're not allowed to give it to anyone else. * If you somehow get a key for the lock, you're not allowed to tell anyone else information about it that might let them make their own key. The MGE case tried to claim, basically, that once someone else has already unlocked the box, it would be a DMCA violation to look inside. And the court of appeals just said "no, that's not something the DMCA forbids" while leaving all the other bits (you're not allowed to have/make/distribute/etc. the key) in place.

It's not possible that it violated the DMCA because it would be fair use to copy legally purchased audio files to an iPod, regardless of vendor.

by gnu8 12y ago

It's not possible that it violated the DMCA because it would be fair use to copy legally purchased audio files to an iPod, regardless of vendor.

tadfisher 12y ago

The DMCA has no exemption for "fair use". Fair use is a specific term, the meaning of which does not include being able to play any audio on hardware with copy-protection.

brownbat 12y ago
More specifically, the DMCA (in the relevant provision) covers bypassing technology that prevents copying. Copyright law covers copying itself. So if you bypass some encryption to copy something, we have to look at two different areas of law, one for the bypassing, one for the copying. Fair use provides some exemptions to the copying. DMCA exemptions are promulgated by the Library of Congress, developed in consultation with the Copyright Office and after public notice and comment periods, and updated every three years. DMCA exemptions are not automatically renewed, so the exemptions can change radically every three years. Public comments have frequently requested a catchall fair use exemption to the DMCA, ie, if the anti-circumvention tech was bypassed only in service of a fair use of a work, then there should be no violation of the DMCA. Such an exemption has been rejected so far, but could be adopted at some point in the future.
- makomk 12y ago
  The DMCA covers bypassing technology that prevents the copying of protected works. I don't think it was ever intended to cover bypassing the parts that prevent you from using it to protect your own works from copying.
  - brownbat 12y ago
    This has actually been the subject of (depressing) scholarly research. "Further, we conclude that the exemption proceeding is constructed not to protect noninfringing users, but to limit courts' ability to exonerate them via the traditional defenses to copyright infringement." http://papers.ssrn.com/sol3/papers.cfm?abstract_id=844544 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=844544
jahewson 12y ago
Actually the case law means that the DMCA has been judged to have have an exemption for fair use [1]. Because neither Real nor their customers were trying to gain unauthorised access to copy-protected materials, it seems unlikely that their behaviour would be considered anti-circumvention. 1. http://arstechnica.com/information-technology/2010/07/court-breaking-drm-for-a-fair-use-is-legal/ http://arstechnica.com/information-technology/2010/07/court-...
- ubernostrum 12y ago
  The MGE case is not the sort of victory you (and Ars) present it to be. It's actually remarkably narrow and doesn't gut the worst of the anti-circumvention provisions. In simple terms, imagine a box with a padlock on it. The DMCA says, roughly: * You're not allowed to examine the lock to figure out how to make a key for it. * You're not allowed to make a key for the lock. * If you somehow get a key for the lock, you're not allowed to use it. * If you somehow get a key for the lock, you're not allowed to give it to anyone else. * If you somehow get a key for the lock, you're not allowed to tell anyone else information about it that might let them make their own key. The MGE case tried to claim, basically, that once someone else has already unlocked the box, it would be a DMCA violation to look inside. And the court of appeals just said "no, that's not something the DMCA forbids" while leaving all the other bits (you're not allowed to have/make/distribute/etc. the key) in place.