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."

Comments

Words

[Apreche]

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.

Well

[rhadamanthus]

This was my concern/confusion too when I posted this question to the DOJ IP Lawyers:
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

Re:Well

[rcpitt]

Thanks - I couldn't believe that I was the first to come up with this concept. I wonder if something like this is behind the move in the US to implement "Copyright" as soon as a work is written instead of published.

Hmmm... just because you're paranoid doesn't mean they're not out to get you ;)

Publishing not a requirement

[Hard_Code]

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!

Re:Publishing not a requirement

[cpt kangarooski]

I have never heard of "publishing" as a requirement for copy right.

No, until 1976 publication was generally a requirement for copyright protection in the US. To wit:

10 -- Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title.

22 was an alternative for foreign authors, but required publication as well. 12 permitted copyrights on some works that were not published, or at least not for sale, but it was very narrow and not all works would be eligible for it.

And don't forget the formalities such as deposit, notice, and registration. Failure to do these things might lose you your rights per 14. Ah, for the good old days.

That said there have been several historical "exceptions" to copyright, e.g. recipes, instructions I believe, stuff like that isn't copyrightable.

Additionally the reason that recipes, instructions, etc. are not copyrightable is not a historical exception, but because those things are FACTS, and you cannot copyright (nor did you create) facts. There's also the merger doctrine to bear in mind. Certainly if you wanted to protect a recipe -- which is a useful process -- you'd better get a patent on it, though that often won't be possible because there are limits on what is patentable as well.

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!

And which law was that?

Anyway, databases could be protected, but only if there was creativity expressed in selecting and arranging the data (e.g. phone books are right out), and it doesn't protect the individual datum, just the compilation as a whole. This is settled.

Re:Publishing not a requirement

[arkanes]

There have been bills considered and introduced (I don't have the numbers handy, but they were covered on slashdot a couple months ago) that would extend explicit protection to databases. The parent was confused if he thought they had been signed into law already.

Rule in the USA

[ccarr.com]

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).

Re:Rule in the USA

[TheLink]

Hmm. In that case what if the disk is designed to self destruct?

That's not very permanent is it?

Re:Rule in the USA

[mabinogi]

But it won't be.

The _copies_ of it sent to people may be designed to self destruct, but the original is permanent.

DRM does not cancel "publishing"

[kalidasa]

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.

Re:DRM does not cancel "publishing"

[kalidasa]

PS: IANAL.

Re:DRM does not cancel "publishing"

[rcpitt]

This was why I asked relative to country, since in Canada the relavent section is:

2.2 (1) For the purposes of this Act, "publication" means
(a) in relation to works,
(i) making copies of a work available to the public,
(ii) the construction of an architectural work, and
(iii) the incorporation of an artistic work into an architectural work, and
(b) in relation to sound recordings, making copies of a sound recording available to the public, but does not include
(c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or
(d) the exhibition in public of an artistic work.

Other than the US (and thanks all for the responses) are there any other countries where this is still an option?

Re:DRM does not cancel "publishing"

[rcpitt]

The indentation on this is not the original. There was actually a line break in (b) after the comma and the words "but does not include" are on a separate line - which to me means that (c) and (d) are not included as "publishing" in Canada.

Re:DRM does not cancel "publishing"

[kalidasa]

Thanks for the response. I'm not sure what objection you're answering here, I'm afraid. This does not provide any basis for the idea that a DRMed copy is not published. "Available to the public" does not imply "open."

Nor does this seem to provide any basis for the idea that publication is *necessary* for copyright (my understanding, which may be incorrect, for IANAL, is that this particular feature is one of the features of the Berne convention, and that Canada is a signatory). Is there some language earlier in the code that indicates that "publication" is a necessary prerequisite of copyright protection?

Re:DRM does not cancel "publishing"

[Twylite]

Hi. Any country that has ratified the Berne convention or any more recent WIPO treaty will have had to enact law that requires copyright to vest in any qualifying creation. Publication is not necessary for copyright -- mere creation is sufficient. In fact, (first) publication is one of the exclusive rights enjoyed by the copyright holder.

Re:Braces

[geoswan]

(IMHO) You (probably) should stop using (that is, to say, writing) braces (brackets) so often.

Is that why you are using parentheses?

Brackets are the square ones. Braces are the curly ones.

rosy DMCA picture

[brlewis]

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.

Re:rosy DMCA picture

[rhadamanthus]

I most certainly agree with you. The DMCA is nothing more than a tool bought by big-name copyright folks (RIAA, MPAA, Publishers, et. al.). The DOJ IP folks don't care one way or the other: its job security for lawyers.

As always: the number one problem with US Government is that we have Lawyers Making Laws!

--rhad

Re:rosy DMCA picture

[Mike Hawk]

Yes, far inferior to having grade school children making laws. Or maybe chefs should make the laws. OF COURSE! Door-to-door salesmen should make the laws! How obvious.

Re:rosy DMCA picture

[log0]

Why not? If you have to live by them, it's only fair you have a say in making them.

Re:rosy DMCA picture

[rhadamanthus]

That's like saying only chefs are truly capable of choosing what food tastes good, because they are trained in such matters. Well, I like cheez whiz and crackers sometimes and my grandma eats marmalade and sausage sandwiches, both of which most chefs probably don't think is the best tasting combination...

*sigh* You are exaggerating my statement, which as usual, makes one look incredibly stupid. Lawyers can write laws yes, thats all well and good. Only other people besides lawyers should have some say in what goes into said law! I hope my clarification of the obvious has satisfied you appropriately.

--rhad

Re:rosy DMCA picture

[Rick the Red]

I, for one, believe that grade school children undoubtedly have a better sense of what's fair than most lawyers and any politician. If you explain the DMCA to school children in language they can understand they will tell you it's not fair.

If you explain it to the Supreme Court in terms of how it's effectively made copyrights unlimited, even they may find it unfair and rule it unconstitutional. They did say Congress was within it's rights to extend the copyright law, but they strongly hinted that enough was enough and Congress was approaching the point of effetively unlimited copyright. They may well be open to the arguement that the DMCA goes too far in that works cannot be copied once the copyright expires.

But I doubt if they would agree that Disney's next DVD is not published and thus is not covered by copyright laws, simply because it's encrypted and won't play on just any old DVD player.

Re:Braces

[Random832]

Brackets are the square ones

Americanism

Re:Braces

[Anonymous Coward]

Braces hold my pants up
[me:ducks]

SPAM on /.

[theslashdude]

I'm glad to see this here. Since installing bayesian filtering, I see almost no SPAM and I haven't seen one of these Negerian Money scams in while. Good thing old /. is letting me know they are still around.

Interesting Notion

[jefu]

While I don't think this would have any effect under current law, I think it might be worth trying to make something like this into law. That is, find a way to make works available only with DRM or through a license covered by something other than copyright.

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.

Re:Interesting Notion

[michael_cain]

While I don't think this would have any effect under current law, I think it might be worth trying to make something like this into law. That is, find a way to make works available only with DRM or through a license covered by something other than copyright.

I guess if I were one of the big studios or publishing houses, I'd be torn about it. On the one hand, the studios seem to be trying to turn the purchase of a CD or DVD into a license anyway; a license with miserable terms for the purchaser, since there's no protection against media damage. Despite their normally draconian EULA, there's usually some mechanism for getting replacement media from a software house for distribution CDs that become unusable due to damage. In fact, my own opinion about whether the studios are selling an object or a license is that the lack of any way to get a replacement means that you're simply buying an object -- play it any way you want.

On the other hand, with trade secrets I think (IANAL) that you give up some of the ability to pursue people all along the chain of illegal copying. Certainly someone has violated their original license when they distributed a copy; and hitting that person for damages is easy, if you can find them; but I'm not so sure about getting damages from people further along the chain. Trade secrets that have "leaked" are difficult to recover, in practice. Perhaps one of the lawyers that read SlashDot can comment?

Silly question

[Webmonger]

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.

Publication is defined in the statutes

[angle_slam]

As others have stated here, publication is not a requirement for copyright protection. Moreover, publication is defined in the copyright statutes. Someone has already posted the Canadian law, so here is the US law: 17 U.S.C. 101:

''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

There seems to be no requirement that the works be DRM free, only that the works be distributed to the public.

Re:Publication is defined in the statutes

[benjamindees]

Two questions:

1) If publication isn't required, why is it defined?

2) If the copyrighted 'work' is the DRM-ified 'original work', how does one go about breaking the DMCA? (really more of a rhetorical question)

Re:Publication is defined in the statutes

[angle_slam]

If publication isn't required, why is it defined?

Because certain rules are different for non-published works.

Re:another dubious "Ask Slashdot" ..

[rcpitt]

You're right - I should probably ask a lawyer - maybe some are lurking here so I don't have to spend my valuable CDN$.

The question was asked in the light of the public's (you and me) somewhat stilted ability to affect the law that lawyers eventually try to pervert in favour of their particular client of the time. The article I wrote is about the FTAA (Free Trade Area of the Americas) proposed treaty and in part was meant to be inflamatory (although I don't seem to do that very well) to Canadians in particular and others in general about the continued erosion of the social contract that was struck back in the 1710 Statute of Anne whereby the public grant to the copyright holder some exclusivity in return for eventual unburdened public access.

I, along with many other /. people, work in the field of Open Source software and I expect the government to uphold its end of the bargain by going after those who would claim my works as their own and try to profit by that.

What I object to is government distorting the playing field in favour of those with money to lobby.

In the daily grind I also am subject to non-disclosure agreements and all manner of legal machinations to protect what amounts to trade secrets - things that have not been published and which here in Canada (and in some other parts of the world but it appears not in the US) are not yet covered by copyright protections.

This discussion may degenerate into "mine is better/worse than yours" rhetoric but I hope it will either cause some people to put their oar in the water in defense of current (or past) rights against the erosion typified by DMCA and the FTAA or at least make some constructive comments to those of us who do want to be part of the process.

Make it a suggestion both for copyright and patent

[RedLaggedTeut]

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.

Source code, right in the patent

[yerricde]

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.

Ownership and Publication

[nuggz]

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.

element of truth

[mabhatter654]

If MS Palladium ever makes it's presence then you would have an end-to-end contracted software stream only. Think of it like the difference between internal company memos and CDs, DVDs, or books. It could be argued that the content never actually left the owner's business...therefore it never entered the juristiction of the US government copyright laws for them to protect it. Copyright laws only exist to protect what you can't reasonably protect on your own. A 100% DRM scheme could be considered "trade secret" information because it is "internal" commuication not publishing. It does not contribute to the pool of the public domain due to contractual obligation. That has no indication of ending at any given time...If you stop the service, end business, etc, the works are still under contract terms. Without the offical DRM tool you cannot use the work...therefore it is a tradesecret, not copyrightable.

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!]

As far as I'm aware

[jonbryce]

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.

Re:Braces

[wraith0x29a]

I quite like the uber-geek approach to puctuation ( some ( but not all ) programmers ( people who write computer code ( especially the 'c' like languages ( PHP, Java, Javascript, Perl (and many more ( including c++ of course ) ) ) ) ) end up using parenthesis ( also known as 'rounded brackets' ( or 'braces' ) ) in the wrong ( according to the rules of ( traditional ) English ) places when writing prose ( ie. 'language not cast in poetical measure or rhythm' ( from Webster's revised, unabridged dictionary ( 1913 ) ) ) ( they also tend to 'nest' ( use multiple levels of ) parentheses ) ) as it is easier for me to read ( but impossible ( or at least very hard ) ) for non-programmers..

If DRM'd versions are not copyrightable...

[thisissilly]

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.