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Is The Eldred Decision Bad For The DMCA?

Posted by timothy on from the circumvention-time-come-on dept.

clonebarkins writes "Law.com is running an article by Evan P. Schultz suggesting that the Eldred decision (/. story) could mean bad news for our favorite four-letter law: the DMCA."

24 comments

  1. Upon further review... by Ykant · · Score: 3, Informative
    Interesting article, it's a reasonable interpretation of that (rather lengthy, but I suppose that's how you do things when you're dealing with lawyers) finding. The author of that article could be reaching a little, though - there may be some wishful thinking at play.

    Besides, if it was really that big a deal or threat, would we have just heard about it now? The thing's dated January!

    On the other hand, maybe the article writer is the first person to actually read the thing (see previous mention of length).

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    Spelling, grammar, punctuation? We need something that checks logic.
  2. Reading in too much.. by molo · · Score: 2, Insightful

    Ginsburg said that the sonny bono copyright act doesn't change the face of copyright in the law, but merely extend the term, it was fine.

    This guy is taking that and making it into a case that the court thinks that the DMCA isn't fine.

    I think he's reading in a lot and its too much of a stretch to reach that conclusion.

    -molo (IANAL)

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    Using your sig line to advertise for friends is lame.
    1. Re:Reading in too much.. by hbo · · Score: 1
      From the article:


      She noted that the fair use defense permits public use of copyrighted "expression itself in certain circumstances." And she wrote that "when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary."


      Now, that is leading language. The basic point of the article is that this language might give hope to those who want to challenge Section 1201(a)(1)(A) of the DMCA. By underlining the importance of "fair use" in copyright law, it may be that Justice Ginsburg, at least, might look with disfavor on a statute that takes necessary tools out the hands of people trying to exercise fair use rights.


      Isn't second guessing the Supreme Court fun?

      --

      "Even if you are on the right track, you'll get run over if you just sit there" - Will Rogers

  3. Quantity versus Quality by MrWa · · Score: 4, Interesting
    So, we have two apparently seperate but coordinated efforts to on one hand extend copyright protection (Bono vs. Eldred) and on the other prevent fair use of said copyrighted material (DMCA). The Supreme Court has deemed it a-ok for Congress to perpetually, if it wishes, extend copyright protection for all of eternity; preventing fairuse, on the other hand, may be something that SCOTUS would not allow. May.

    Now, will someone please use something that would be banned by the DMCA for a legitimate, meaningful, publicly supported task and dare someone to sue under the DMCA. Make a teaching DVD for kids that shows how wonderful the Supreme Court is using copyrighted works and DeCSS. Until this gets to SCOTUS it is law of the land...Congress and their corporate sponsors are effectively locking away years and years of our culture through legal and technological methods. At the very least let's break the law which prevents even attempting to break the technological protection.

    1. Re:Quantity versus Quality by Anonymous Coward · · Score: 0

      You keep using the term, SCOTUS. What does that mean?

    2. Re:Quantity versus Quality by Beryllium+Sphere(tm) · · Score: 2, Informative

      Acronym for Supreme Court of the United States.

    3. Re:Quantity versus Quality by Anonymous Coward · · Score: 0

      That made my day.

    4. Re:Quantity versus Quality by Anonymous Coward · · Score: 0

      And, in case you run into it:

      POTUS == Prez of The United States.

    5. Re:Quantity versus Quality by Alsee · · Score: 4, Insightful

      Now, will someone please use something that would be banned by the DMCA for a legitimate, meaningful, publicly supported task and dare someone to sue under the DMCA.

      I have a better idea - preform the decryption entirely mentally. It is a crime to decrypt, no matter how you do it. There is absolutely nothing about the law that has anything to do with computers. They just assumed that DRM will only be circumvented using a computer, and they assumed decryption tools were EXE's and hardware. Decryption tools are actually math and knowledge. Absolutely any program to decrypt can be "run" purely mentally by thinking through the lines of the program one by one. It may take a while and take a lot of effort, but it's always possible.

      I'm not sure of the best way to get prosecuted for violating this law, but try not to let them know the decryption was done mentally until they actually drag you into court. I'd like to see them try to defend a law putting you in prison just for thinking certain thoughts. That's GOTTA be unconstitutional.

      -

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      - - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
    6. Re:Quantity versus Quality by Anonymous Coward · · Score: 0

      Or as Bill said to Monica, I'm the POTUS, so lick my SCOTUS, then baybee, I'll lick yours!

    7. Re:Quantity versus Quality by ralatalo · · Score: 1

      How about all the of equipment that they use to master the cd's and DVD's in the first place.

      I have often wondered about this issue. If intent does not matter only the ability.... then... who controls the limits? If I produce a Cd or DVD that is protected by some means as the Big Boys ( CSS, etc..)

      Does the ability of the the mastering and production equipment (licenses by the Recording Industry, not BY me) to access the content and copy it violate the DMCA? I own the copyright of the material, do I need to own access protection too?

      Or, can someone license equipment which can violate someone else's copyright... ie, can the owners of an access protection scheme license a product which bypasses the access control without regard to the wishes of the content provider?

    8. Re:Quantity versus Quality by Funksaw · · Score: 1

      Actually, copy-protected CDs can be circumvented with a sharpie marker. Anyone who owns a sharpie marker can be put in prison up to 10 years. Yeah, it's unconstitutional, but Congress, the President, and the Courts use the constitution to wipe their asses everyday. -- Funksaw

  4. raises the bar for literacy in the digital age? by imsmith · · Score: 4, Insightful

    The comment about the untechnical users being deprived off fair use by technological means makes me think that "literacy" has been given a new legal power:

    If you are unable to understand and comprehend the work, that is you are illiterate to the communication means utilized to create the work, you are not entitled to fair use rights. Fair use in this context seems to have nothing to do with the presentation or distribution of the work to the audience, only the means of production - a distinction not present in a written work, which combines production and presentation, but starkly clear in computer software.

    It seems to be saying that since I don't have fair use rights to timeshift a movie on opening day, to store a live performance by calling in the artist to play at 4 am, or to experience a baseball game with out a ticket, I also don't have the right to acquire the work of another person which will give me by proxy the technical expertise that I don't have, namely the literacy required to exercise my fair use rights over technologically protected works.

    Sounds a lot like polling tests in the South that kept the illiterate from voting in elections.

  5. Not every cloud has a silver lining. by uncoveror · · Score: 3, Informative

    The author of this article is looking hard for a silver lining in the cloud of the Eldred decision, and thinks he has found it in Justice Ginsburg's wording. I don't see it. This court is very pro business, and has given it's Nihil Obstat and Imprimatur to perpetual copyright through repeated extention. If the question on the DMCA comes before them, they will recieve many friend of the court letters from the likes of the MPAA, and RIAA that will convince them to uphold it. Citing precedent, future Supreme Courts won't give us back anything the DMCA and CTEA have taken from us, and neither will Congress. They are puppets on the strings of their corporate special interest masters. Here is link to what I wrote when the Eldred decision came out. Though I was very emotional at the time, and said some inflammatory things, I stand by my words.

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    The Uncoveror: It's the real news.
    1. Re:Not every cloud has a silver lining. by John+Biggabooty · · Score: 4, Interesting

      I don't see a silver lining coming from the courts or Congress, but from technology. The DMCA and CTEA remind me of the flurry of laws passed after the invention of the automobile to stifle it, and prop up the horse and buggy industry. They were futile. File trading, and other new technologies are making copyright law unenforceable, and irrelevant. Soon, copyright will be cast into the dustbin of history where it belongs.

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      That's Bigboo TAY! TAY!
    2. Re:Not every cloud has a silver lining. by borgboy · · Score: 1

      An apt observation. If I had mod points, you'd have one. However, I fear that progress in corporate special interest lobbies may have advanced sufficiently to prop up these dubious assertions of iron-fisted copyright

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      meh.
    3. Re:Not every cloud has a silver lining. by Zork+the+Almighty · · Score: 2, Interesting

      Very much agreed. File sharing would be a minor issue if the copyright industry weren't choking the public domain. However, since they are insisting on total ownership and control, it's going to be a fight to the finish. I don't know if we will ever "win", but I'm pretty confident that the forces of technology and innovation will ensure that we never lose.

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      In Soviet America the banks rob you!
    4. Re:Not every cloud has a silver lining. by ahfoo · · Score: 1

      I think it's rightfully complex. When it comes to law, it's so typical for people to oversimplify it into political camps of for and against business or some other vague political entity when the action is taking place in language and it is inherently complex and unstable.
      Who would have thought this conservative court would come up with this recent sodomy ruling and there was much reference to privacy in the opinions. It affirms my belief that the specific wording of each case really has to be put into context when deciding what is and is not a meaningful decision.
      As for Eldrgidge, I read the opinion and I found that everyting hinged on the definition of one word --"limited".
      The court felt that there was no way for them to put a limit on the word "limited", so they had no basis for limiting copyright. This was the heart of the issue in the court's opinion and that meant that all these other important issues like fair use and the DMCA had to wait for another case where they were more pertinent to the language of the case at hand.
      After reading the sodomy opinion, I'm fairly confident that what we're going to see is a Verizon-like case that makes it to the Supreme Court and the RIAA, or whoever is pursuing the case, will get smacked down which will effectively put the issue to rest since the services themselves have already been found to be legitimate. If the services are okay and the user's relationship to the ISP is confidential, then there's really no issue which is how it should be.

  6. Better yet, use a pencil and paper to help you by StringBlade · · Score: 1
    Then they can outlaw pencils and paper as instruments of circumvention under the DMCA.

    Sorry Johnny, I'm going to have to send you to the principal's office. You know pencils are a restricted item in school now.

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    ...and that's the way the cookie crumbles.
  7. one word: dicta by kaltkalt · · Score: 2, Informative

    What Ginsburg said in Eldred is most certainly nice and fluffy, but it's dicta, and thus not binding precedent. That's the bottom line. Eldred does not stand for the proposition that the first amendment guarantees fair use. Of course, such dicta can be cited persuasively in the future, but it's most certainly not binding on the next court to hear a DMCA challenge, even though the SCOTUS said it.

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    Stupid people make stupid things profitable.