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Is it Copyrighted or a Trade Secret When Using DRM?
rcpitt writes "In a discussion on the Digital Copyright (Canadian, but relevant world wide) list I subscribe to, we were discussing the Free Trade Area of the Americas (FTAA) treaty. In thinking about an article that I subsequently wrote I came up with this thought:
If 'publishing' (in the context of when the copyright act takes effect for a work) were taken (by the courts for instance) to be defined only as that done without any rights management or extra contractual ties, then all works not so published would then become trade secrets (or something to that effect), and would lose (or never gain) the protection of the government via the copyright act and have to go after civil damages for individual transgressors. I'm interested in others' thoughts on this concept in light of Digital Rights Management, distribution of binary/source code (software), or music/video (multi-media) with an EULA that is restrictive might be construed as 'not publishing' in the context of whether the (insert your country) Copyright Act can be applied."
Law is all about words. It all depends on what the word publishing is defined as in the applicable laws. And like most here, IANAL, so I couldn't tell you. It is slightly interesting though.
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(IMHO) You (probably) should stop using (that is, to say, writing) braces (brackets) so often.
Thanks.
See here
Reprinted here:
3) Question regarding the DMCA and copyright terms - by rhadamanthus
If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?
O'Leary:
I don t believe that the CBDTPA is under consideration in the current Congress, nor are we aware of other pending bills that would mandate the use of digital rights management systems. However, your question seems more focused on the DMCA, specifically the portions of the DMCA that govern anti-circumvention technologies, i.e. Section 1201 of Title 18. For purposes of answering this question, the term DMCA refers specifically to Section 1201.
The DMCA prohibits trafficking (which includes manufacture, sale, distribution, importation, etc.) in tools (i.e., technologies, products, services, devices, etc.) that:
(a) are primarily designed to circumvent,
(b) are primarily marketed for use in circumventing, or
(c) have limited commercially significant purpose or use other than circumventing, either one of the following:
(1) a technological measure that effectively controls access to a work protected under this title [i.e., the Copyright Act] (see 18 U.S.C. Section) 1201(a)(2); or
(2) a technological measure that effectively protects a right of a copyright holder under this title (see Section 1201(b(1)).
The first type of control above will be referred to as an access control, the second as a copy control. In addition to the restrictions on trafficking, the DMCA also prohibits actual circumvention of access controls (see Sec. 1201(a)).
The DMCA s main purpose is to help protect the rights of copyright holders. However, the DMCA was also designed in part to protect and preserve the rights of people who use copyrighted works. First, the DMCA expressly states that it is not intended to affect limitations on copyright or defenses to infringement such as fair use. Second, the DMCA contains a number of exceptions and exemptions that, for example, allow in some circumstances reverse engineering, encryption research, and certain actions by libraries and certain educational institutions. Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls. As the district court in the Elcom case noted, Congress omitted a prohibition against circumventing copy controls specifically so that users could engage in fair use (and, presumably, to use works that enter the public domain). (See U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111, 1020
Slashdot needs to interview Natalie Portman.
I have never heard of "publishing" as a requirement for copy right. At least here in the US, if I write it down, it implicitly and immediately is copyrighted to me (of course, going through the process of officially "registering" the copyright will improve my chances of success in case of plagiarism, etc.). That said there have been several historical "exceptions" to copyright, e.g. recipes, instructions I believe, stuff like that isn't copyrightable. Until recently "databases" of public info wasn't copyrightable either, but they passed some dumbass law because I guess they figured marketers need even more protection!
It's 10 PM. Do you know if you're un-American?
I'm sure someone will correct me if I'm wrong, but I believe that the US does not require publication any more. To receive copyright protection, a creative work must be fixed on a permanent medium (including computer disk).
I don't know half of you half as well as I should like, and I like less than half of you half as well as you deserve. BB
But was it published? What the hell are you on about? Your writing is abysmal.
Make sense man!
If a book is only accessible to those who buy it from a store, is it published? Yes. Restrictions on use do not negate the reality of publication.
"publication" is not a requirement of copyright - not even a requirement of copyright registration. One can submit copyright registrations on unpublished works.
"published in a fixed form" - paraphrase. So if it's made available to the public, that's generally (I think) seen as publicizing^H^H^H^H^H^Hshing. IANAL.
Oh great. Nice to know that DMCA problems will be "sorted out" someday at great legal cost to some little-guy victim of the RIAA.
"Protect and preserve the rights of people who use copyrighted works"? Give me a break. You lose the ability to fast-forward ads in a DVD you buy. You lose the right to bring a DVD with you to another part of the world and play it on somebody else's DVD player. You lose the right to use free software to play your DVD. Just because it doesn't take away every one of our rights doesn't mean the DMCA can boast of protecting and preserving. It expands the power of copyright holders, period.
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Who said anything about requiring copyrighted works to be published? According to copyright law, a work is copyrighted as soon as it is fixed into a tangible medium.
Since DRM often removes the "First Sale" kinds of rights from the consumer, this seems only reasonable.
I think something like seven years would be a nice timeframe. That is DRM protected works would be no longer protected by law after seven years have elapsed. This is probably not unreasonable for most of the companies involved - movies, popular music and the like are often only really valuable for a year or two, so seven years gives them ample protection. After that they'd be in the public domain.
It does raise complex questions though - suppose someone publishes a work in small quantity (say a dozen copies) and copyrights that, then releases a mass market version that is DRM protected. What rules cover it?
I suspect though that a combination of the complexity of the rules required, the power of the big corporations and the general lack of interest in the people evidenced by "our" legislators would result in something worse than what we have now.
Thanks for asking, HTH.
Publication is not required for copyright. Freedom of access is not required for copyright (c.f. Scientology).
However, publication one form of duplication, so the only way to make sense of your question is:
"Should I be able to sell DRMed copies of Madonna CDs without paying her"?
Somehow I doubt this is what you meant.
first of all ask a lawyer your legal questions. that's what they are for, you know? or read the laws yourself, it's all in there, somewhere.
.. a "secret" is kept "secret" do you understand? the information on the latest 50 Cent CD is not a secret, no matter how much DRM is on it.
second of all, once the data is fixed in a tangible medium, it is protected by copyright, so that's not even an issue.
third of all, if something has DRM on it, that's doesn't make it a "secret"
for instance the key used for the DRM, might be a trade secret (or might not). If it is a key hidden on the CD plant's premises, then definitely. If it is hidden in your CD player, then probably.
You could probably also argue that the ENCRYPTED DATA is ITSELF copyrighted. So you can't rip a DVD encoded with some unbreakable copy protection and distribute it, and then claim that since nobody can read the movie data, you aren't commiting copyright infringement.
And finally courts aren't stupid, they know when you are trying to weasel out on a technicality and they keep it in mind when making decisions.
Actually this is more a suggestion than a question:
Make it so that software patents only hold if the source code is given in the patent application, and make it so that copright is only given if a copy of the work is available somewhere for copying after copyright expires.
But this is a suggestion, not the state of the law.
I like the idea.
I'm still trying to figure out what people mean by 'social skills' here.
Make it so that software patents only hold if the source code is given in the patent application
Source code is given in every software patent application. The "description of the preferred embodiment" is written in a pseudocode language called Legalese, which attempts to provide an English language representation of an algorithm. It remains for patent lawyers and programming language designers to codify Legalese into something compilable.
Will I retire or break 10K?
If I make something, I own it. I don't have to publish it to own it. If someone steals my work, and publishes it, I still own it.
Public doesn't mean available to anyone anywhere, it just means "released"
In the financial world we have publicly owned companies. But this does not prevent the "Public" owners are a select group, who may or may not sell to the public at large.
The best thing to do might be to let a full fleged DRM system come out for another 10-15 years. Then start fighting these battles after said company is out of business and cannot fufill it's end of the DRM bargin to customers! Now would that abandon data be protected or considered like physical property [get what ever out of it you can!]
Copyright extends to all works, not just those that have been published.
Trade secret law may apply in addition to copyright, or instead of it.
then expect there to be two "editions" of a product. First, the non-DRM'd version, priced at $10M (cdn), establishing copyright, and then the DRM'd version, controlling access to a copyrighted work.