The Death of DRM
I debated whether this is topical enough to post, but I figure most of us use iTunes, and we have a lot of IP lawyers-in-training, so here you go. It appears iTunes will be DRM-free as of this Spring. I'm not a fan of DRM, but I don't plan on making a living in IP. Those of you who do, is this a good thing?
posted by Dan at 1:56 PM
7 Comments:
Of course, iTunes wants to charge you to upgrade your DRM-laden music to the new DRM-free standard -- so they're kind of making money coming and going either way, right?
I'm particularly bitter having spent a lot on music in the past year, now that I have a disposable income to speak of (and no actual time to go out during normal going-out hours).
This isn't really as much of an IP thing as it is just good technological news. DRM takes extra computer resources to decode, and prevents you from using your music in some perfectly legal ways.
One IP issue that comes out is if they allow you to strip the DRM from your itunes purchases without paying for any sort of upgrade. I forget the rule exactly, but as it stands now, you can remove DRM on your own music if you do it yourself, don't distribute software that will do it for other people, and a couple of other caveats. Anyway, good news for us technophiles.
Thanks Toney, interesting. I thought maybe it would do away with lawsuits for file-sharing, but I guess it doesn't really change anything in that regard. Still, good sign!
This is a positive development, but not much of a surprise. Lots of other online stores have been offering DRM free downloads for a while.
As to Toney's comments, I'm not quite sure what you are saying, but there is no legal right to remove DRM controls like Apple's FairPlay regardless of whether it is done privately or not. See 17 USC 1201.
6:52 - Thanks a lot for making me get off my couch, and grab my textbook (see, I have the flu, so that was a jerk thing to do).
The illegality of circumvention is limited to instances of anti-access circumvention. 1201(a)(1)(A). There is no DMCA restriction to anti-copying circumvention. According to Professor Samuelson and the Cohen textbook, fair use has and can be claimed in defeating a work's DRM if you already have legal access to it. The argument made usually goes something like: "if you have the legal right to use a work, bypassing it's DRM isn't bypassing access provisions." I realize the statute expressly forbids "removing technological measures", but the courts have (for now), decided the statute implies otherwise. Other defenses to circumventing DRM include the first-sale doctrine, reverse engineering fair use, and interpretation of "access" to exclude "use". It's still largely up in the air, but the trends seem to indicate it's ok to beat Fairplay.
The problem I very in-eloquently referred to is that 1201(a)(2) forbids the manufacturing or offering to the public devices which circumvent DRM. So, it's pretty much up to you to decrypt something on your own, though there are those nerdy enough to be able to handle it.
Actually, I just noticed that FairPlay's DRM allows you to rip the DRM'd song to a CD, then re-rip it back to MP3 (DRM-less). The first sale doctrine doesn't apply here.
It's also worth noting that several major players (including elite ninja hacker DVDJon himself) have commercially released FairPlay removers, and no lawsuits have been filed.
Toney,
FairPlay is an access control, not a copy control. So the act of circumvention is prohibited under the statute.
As far as fair use, it has never succeeded in a single case as a defense to a 1201 violation. I think you are reading the Chamberlain decision to go much further than it actually does. That case says only that where there is no possible nexus with acts of infringement, no 1201 claim can stand. That is far from obvious with respect to DRM restricted music.
I don't know where you see first sale as a defense under the statute or the caselaw. I don't think a cite could be produced for that proposition.
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