Brazil Forbids DRM On the Public Domain

nunojsilva writes "Cory Doctorow reports that the Brazilian equivalent of DMCA explicitly forbids using DRM-like techniques on works in the public domain. 'Brazil has just created the best-ever implementation of WCT [WIPO Copyright Treaty]. In Brazil's version of the law, you can break DRM without breaking the law, provided you're not also committing a copyright violation.' This means that, unlike the US, where it is illegal to break DRM, in Brazil it is illegal to break the public domain."

Comments

In Soviet Brazil

[mjwx]

Copyright laws work for the good of the people

Re:In Soviet Brazil

[Fluffeh]

Copyright laws work for the good of the people

What a funny turned upside down world. The first world nations are striving to work against the people, and the not so first world nations have this crazy idea to work for their people.

*sips coffee*

Re:In Soviet Brazil

[cappp]

Nope. This is a proposal, not an actual change to the laws. The article on ArsTechnica makes that very explicit.

For those interested in reading the entire thing - it's available here.

Re:In Soviet Brazil

[cappp]

The proposed "Fair Use" rules in Brazil read:

Article 46. Not an insult to the use of copyright protected works, dispensing with even the express prior authorization of the owner and the need for compensation by those who use them in the following cases:
I - reproduction by any means or process of any work legitimately acquired, if made in one copy and by the copyist, for his private use and not commercial;

II - reproduction by any means or process of any work legitimately acquired, where to ensure its portability or interoperability, for private, noncommercial

III - playing in the press, news or informative articles, published in newspapers or magazines with the name of the author, if signed, and the publication of which were transcribed;

IV - to use the press, in speeches at public meetings of any kind or of any work, and when it is justified to the extent necessary to fulfill the duty to report on news events;

V - the use of literary, artistic or scientific works, phonograms and broadcasting of radio and television shops, exclusively for customer demonstration, provided that the said establishments market the media or facilities to enable its use;

VI - a theatrical performance, recitation or declamation, the audiovisual display and musical performance, provided they have no intention of profit and that the public can attend free of charge, held in the family circle or in schools, when intended for use by bodies teachers and students, parents and other persons belonging to the school community;

VII - the use of literary, artistic or scientific evidence to produce judicial or administrative;

VIII - the use in any work of short extracts from existing works, of whatever nature, or entire work, when the visual arts, where the use itself is not the main goal of the new work that does not jeopardize the operation normal work reproduced or unjustifiably prejudice the legitimate interests of authors;

IX - the reproduction, distribution, communication and the provision of public works for the exclusive use of disabled persons where the disability involves, for the enjoyment of the work by those people need to use at any particular process or still some adaptation of the protected work, and provided that no commercial purpose in the reproduction or adaptation;

X - reproduction and making available to the public for inclusion in portfolio or professional resume, to the extent required for this purpose, since he who wishes to disseminate the works by such means is one of the authors or person depicted;

XI - the use of pictures, or other form of representation of the image, custom, when performed by the object owner ordered, with no opposition from the person represented or, if dead or absent, his spouse, his ascendants or descendants;

XII - playback of lectures, conferences and classes for those to whom they are addressed, prohibited the publication, regardless of the purpose of profit, without prior written permission of whom ministered;

XIII - reproduction necessary for conservation, preservation and storage of any work, non-commercial purposes, if carried out by libraries, archives, documentation centers, museums, film and other museum institutions, to the extent required to meet its goals;

XIV - the quotation in books, newspapers, magazines or other means of communication of passages from a work for study, criticism or controversy, to the extent required for the specific purpose, stating the name of the author and origin the work;

XV - a theatrical performance, recitation or declamation, the audiovisual display and musical performance, provided they have no intention of profit, which the public can attend free of charge and they occur to the extent required for order to achieve and the following assumptions :
a) for educational purposes only;
b) with the purpose of cultural diffusion and multiplication of public opinion formation or discussion by film soci

Re:In Soviet Brazil

[Anonymous Coward]

Brazil burns a lot of ethanol (world's first sustainable bio-fuel economy), so they can be energy self-sufficient as well. How the hell will the enlightened world ever be able to embargo them into submission?

Re:In Soviet Brazil

[Sulphur]

They make their ethanol from sugar which is more efficient than corn.

Once an ethanol market is bootstrapped, one can switch to cellulose which uses no foodstuffs.

Re:In Soviet Brazil

[TubeSteak]

http://en.wikipedia.org/wiki/List_of_countries'_copyright_length
Brazil: Life + 70 years

It's a joke to talk about "a fine and balanced approach to copyright law" while ignoring life + 70 years of copyright protection.
They'll be doddering seniors before anything created in their lifetime is public domain.

Re:In Soviet Brazil

[sznupi]

What a funny turned upside down world. The first world nations are striving to work against the people, and the not so first world nations have this crazy idea to work for their people.

Funny indeed, if you haven't put a second thought into actually contrasting "nation" with "people"...

Who wants you to / how did you you allow yourself to forget that they are basically the same, or at the least the former is a reflection of the latter?

Re:In Soviet Brazil

[the_B0fh]

actually, it was a court clerk, no the supreme court that said so. they just found it convenient to allow that to stand. someone should challenge this before the supreme court.

Re:In Soviet Brazil

[Sique]

No. A nation is different from people. Take one of the emirates at the persian golf: Large parts of their population are not part of the nation, but they are still people living there.

Re:In Soviet Brazil

[captainpanic]

It's not crazy or upside down at all.

The United States Economy is built largely on IP law. We export research, science, art and knowledge to other countries which manufacture products based on that investment.

Publishers and Manufacturers just put data on disks and pages. Without IP laws standing in their way they could make DVDs for $0.01 each. They still make just as much profit as before (actually more since they can sell a DVD now for $1 and pocket $0.99 instead of $0.001 profit on manufacturing they would charge before.

They're leading the way because they have no interest in protecting intellectual property.

You seem to suggest that Brazil does no research at all, has no universities, no industry that does any inventions, that it produces no movies, no music, and has no culture.

You're right that it seems that Brazil has little interest to protect IP. But the reason is not because they don't produce any IP themselves. The reason is that they see the added value of sharing it.

Re:In Soviet Brazil

[vegiVamp]

When and where the interests of corporations supercede those of the people, those two concepts are easily contrasted.

Re:In Soviet Brazil

[C0vardeAn0nim0]

one: official here don't usually leave office, with rare exceptions (like former president FHC). they just run to another office. it's not considered shamefull here to run again even after leaving presidency. of all the still living ex-presidents, only FHC didn't run for some other thing. sarney and collor are senators, itamar franco was governor of minas gerais untill 2003, and is running this year for senate. so offers of jobs have little value here.

two: we have a multi-party polical system, not a bi-partisan system. so, there's lots of interest from smaller and opposition parties to simply block proposals of rulling parties, specially in controversial stuff.

three: different than US, that only have right wing and FAR right wing parties (yes, the american democtratic partic _IS_ right wing), we actually have leftist parties. this includes real socialist, workers and communist parties. and DMCA style laws are anathema to their party lines.

four: populism and anti-americanism. both traits are very strong in basilian politics, which combined with 2 and 3 makes it very hard for foreign companies to simply bribe the government. unless you're a car manufacturer, like GM or volkswagen. but even in this case they have to _beg_ the government to get what they want. only civil construction contractors, banks, farmers and alcohol (AKA ethanol) producers have free pass to bribe the government here, but those are all local folks.

Re:In Soviet Brazil

[PopeRatzo]

What a funny turned upside down world.

There has been a quiet revolution going on in South America for at least the past decade. With countries moving to the Left and succeeding. We get to hear about Hugo Chavez and what a terrible man he is, but except for the North American corporate tools that still ply their trade down there, and right-wing thugs for hire, he's pretty much beloved. We don't hear about it because the corporate press in Venezuela (and Peru, and Bolivia, and Brazil) refuse to tell the story, but these South American countries have been succeeding not using an American-style, "free-market", corporations run everything system, but with a center-Left, enlightened form of Socialism that's a lot more like Northern European success stories like Sweden and Denmark. In Brazil, for example, there's this widespread belief that the rich natural resources (like the Public Domain) actually belong to the People instead of a banker or shareholder.

In fact, "European-style" Socialism can learn a lot from some South American countries. It's still far from perfect, and as you say they're not quite "First World" yet, but they're coming on strong and unlike other places, it's happening for everyone, not just the rich.

I spend a lot of time in Brazil and elsewhere in South America. I just got back from Campinas where I went to play my cavaquinho in a samba festival and hike a bit. I have friends down there at various socioeconomic levels and ethnic backgrounds, and they all tell me the same thing.

Seriously, there's a story to be told about the South American successes that's going to take a lot of people by surprise.

Re:In Soviet Brazil

[JasterBobaMereel]

They can make DVD's for $0.01 each because that's how much they cost ... ...and they charge the same for a Movie that was made in 1950 where in the USA the stars, director, producer all get nothing, but the publisher still gets their cut of the pure profit, since the cost of making the movie was paid off years ago

The reason they can charge more than it's worth, is because people thanks to the US movie industry thinks that's how much they are worth ...

Re:In Soviet Brazil

[b4dc0d3r]

Please understand a bit more before spouting this. A capitalist country with a consumer-based economy requires business protection. What's good for the company is often good for the people. Yes there are some areas in which businesses have benefitted at the expense of the individual, but there are many cases that go the opposite way. You just don't hear people complaining about them.

To digress a bit, it's like when you learn a word for the first time, and suddenly hear it everywhere. You think it's coincidence, but it's really just that you are paying more attention to it. So someone gives you an anti-consumer example, and then you're looking for it everywhere. That's what individuals complain about, and if you talk to enough individuals, that will be all you hear. A company that pays low wages is controlling costs, and is often preventing those jobs from being lost completely as they are sent overseas. It is a balance in which the individual decides whether to work for a company, and the company tries to woo the employees while not giving so much that the cost of the good or service is overpriced.

It is a difficult balance, and without business we have neither jobs nor products. So we must concede some points to them.

Before someone starts on about corporate pay and lobbyists and all that, remember that the "invisible hand of the market" takes a long time to act, and it is currently swinging in the direction of shareholders having input on pay packages (so they can determine whether profits go to a single guy who makes few decisions on his own or to dividends). And more importantly, if you owned a business, wouldn't you want to have some discretion as to what to do with your money? Subject to the whims of the market of course. We need business and business needs us, and if you don't like a business stop buying and educate your friends and neighbors.

I had a co-worker say that her daughter was caught in one of the mid-range RIAA lawsuits. I discussed some options found here, she decided to just settle. Hearing that decision, I asked her what her daughter was listening to these days (it was summer break). "All legal, paid for CDs, no downloading" she replied. By whom, I inquired, and some of the most radio-popular names spilled out. I told her, you know you're just giving more money to RIAA member companies, the same ones that just got thousands of dollars from you without going through the court system. She then told her daughter that her entertainment budget would be severely curtailed next school year and would have to make decisions about buying music in an informed manner. She was enabling anti-consumer tactics against herself, and had no idea. Ignorance, my point is, is more anti-consumer than any law or ruling or regulation could ever be, and we do it to ourselves.

Re:In Soviet Brazil

[stein.dagostini]

WRONG! We do not raze rainforest for that. Because rainforest soil is HORRIBLE for agriculture. Brasil has HUGE plains much more suited to sugar cane production. Most of legal rainforest razing is to create cattle and most of the ilegal one is for high grade wood that is sold to US and Europe black markets to poduce nice expensive furniture. Learn a bit before spelling crap here. Brasil uses ethanol as a MAINSTREAM fuel for like 30 years already. And Brasil has MORE preserved natural vegetation than US or ANY country in europe. Rainforest soil is extremely thin and not appropriated for agriculture. Brasil has a low production of wheat because here is too hot and humid for that. But we produce soy and other foods in very very large scale, IN fact Brasil is only surpassed by US in grain production.

Re:In Soviet Brazil

[commodore64_love]

>>>They make their ethanol from sugar which is more efficient than corn.

(packs suitcase)

That's it. I'm moving to brazil. They have the right co copy the CD you buy to your iPod, they have renewable energy for cars (ethanol or biodiesel), and they have women that walk-around topless as often as the men do! This is definitely the country for me. One drawback - Their average internet speed is only 3.8 Mbit/s - about 6 megabits slower than the US or EU average. Oh well. (shrug). I think the topless ladies make up for it.

Including _fair use_!

[Mathinker]

This is a masterful inversion of the motivation behind the treaty which more or less makes it impossible to implement any kind of reasonable (in the eyes of the likes of **AAs) DRM --- because the DRM has to enable at least limited copying since fair use/dealing is one of the exceptions the DRM has to enable. If everyone can copy X seconds out of of a work (X > 0), then if enough people join forces, they can copy a work of any finite length.

Re:Including _fair use_!

[Kitsune Inari]

makes it impossible to implement any kind of reasonable DRM

any kind of reasonable DRM

reasonable DRM

Oxymoron detected.

Re:Including _fair use_!

[bzipitidoo]

There is no serious fear of a "secure" DRM ever existing

True.

the companies aren't skilled enough to fix trivial flaws

But not for this reason. DRM that works is a logical impossibility, and no amount of skill can change that. DRM will always have the flaw that it only takes one successful effort to break it, and once broken it is broken for everyone, always. And that in order to be "consumed", content must be unlocked, and then it can be copied in any number of trivially easy ways. The media companies' real difficulty seems to be an unwillingness to acknowledge this.

Re:Including _fair use_!

[silentcoder]

>I think you're confusing the technical ability to break encryption with its legality. It seems that the new proposed legislation would allow you to legally break the DRM encryption to use something under fair use. It doesn't say that whoever put DRM must tell you how to break it or give you keys.

Actually, it DOES. It states that the DRM MUST allow you to exercise (any and all off) your fair-use rights. It makes it a criminal offense punishable with a fine to prevent them. This means that if a user demands the keys in order to make a backup copy of a piece of media, they would be committing a crime if they refused to provide them, unless of course, the DRM in question is built in such a way that it makes these fair use rights actively doable already (like e.g. steam's allowed-backup system).

Re:oh so its still illegal?

[Anonymous Coward]

I assume it simply meant it is illegal to move public domain works into a form that gives IP rights over it.

That is nice to hear

[RandomAdam]

Nice to hear that at least some places in the world wont criminalise people so x-megacorp can "protect" their investment even after it should have passed into public domain

Fascinating

[mysidia]

<p>
How long will it be before US sanctions and pressure from other governments still controlled by the **AA pirates  forces them to fall in line and adopt more conventional DMCA rules?
</p>

Re:Fascinating

[cyclomedia]

Actually, Brazil has been plenty socking it to the (Gov't of the) USA lately, as part of one of the BRIC bloc (Brazil, Russia, India, China) of large economy's that don't give a crap what the USA has to say about a lot of issues. Take for example Brazil hosting negotiations and setting up a deal between Turkey and Iran regarding uranium enrichment. USA was not pleased and made a lot of waa waa noises at the UN but as far as those three are concerned the USA can stuff off and get off their lawn, thank you.

The USA is still the most powerful nation on earth, but they're at a tipping point and it's not just the BRIC countries that are coming to realize that they can do whatever the hell they like and the USA can just shut up

Re:Fascinating

[Kreigaffe]

Next time you're trying to talk up Brazil, maybe avoid the part where they help facilitate Iran getting its hands on enriched uranium

With Liberty and Justice for all

[Anonymous Coward]

Take that, USA.

not unusual

[Tom]

Really not surprising. When the US was a small, backwater english colony, it was also famous for its piracy (of books, in that time).

It is the countries with the massive content industries that have the strict copyright regimes. Brasil isn't home to Hollywood or very many international music superstars.

Re:not unusual

[NoMaster]

And when it was a slightly larger, less backwater independent nation, it was famous for its piracy of other art forms...

Re:not unusual

[Tom]

Well, apparently these days one has to spell out everything on /. instead of being able to rely on basic intelligence in the reader.

I'm sure Brasil has a comparative pool of creativity to the US, Europe, Burma, Greenland or any other place on earth. There are some local differences depending on whether or not creativity is valued in a culture or not so much, but as it's a basic human trait, they are pretty small.

However, Brasil does not have a massive industry based on copyright. And copyright is, first and foremost and no matter what they try to tell you, an economic law. It gives you you a monopoly on commercial use of your works.

So, without an industry that is strong in copyright, the country has no major incentives to be a strong proponent of copyright. On the contrary, turning a blind eye to the use of foreign copyrights is a reasonable thing to do (less money flowing out of the country for goods with no tangible value).

"What a funny turned upside down world."

[circletimessquare]

yes, brazil is in the southern hemisphere (mostly)

this is their map they share with the other antipodeans:

http://upload.wikimedia.org/wikipedia/commons/6/6f/Blank-map-world-south-up.png

Re:At odds with hardware?

[Mathinker]

> but isn't it at odds with modern hardware?

It's "at odds" with the concept of DRM, itself, actually, because the DRM system has to enable limited copying (for fair use --- see my comment above).

This is just a proposal for the law, because of its incompatibility with the status quo of global commerce (as you point out one of many problems) I think it has very, very little possibility of actually becoming law in its proposed form. Unfortunately....

All cracking legal?

[wvmarle]

If it is legal to crack/circumvent DRM when you are "not committing a copyright violation", it seems that it is also OK to crack DRM on other works, as long as you do not redistribute it. A few comments up someone posted the actual Brazilian fair use rules, and those seem pretty fair, and explicitly allow a.o. for creating a copy for personal use.

This would make it legal to say strip DRM from your legally bought iTunes songs, in order to make your personal copy.

It would be legal to rip BluRay discs and removing the DRM in the process, again to make your own personal copy.

Redistributing said material with or without DRM in place would be a copyright violation, and rightful so.

It would presumably be legal to create tools to do this - it seems reasonably to expect that to distribute such tools would even be legal.

Now the real fun can start: Brazilian programmer produces tool that removes DRM from material with US-owned copyrights. Fully legal in his native country. Would this person be liable to prosecution in the US? And indirectly by producing such a tool banning himself from visiting the US for the rest of his life?

Re:All cracking legal?

[shutdown -p now]

Now the real fun can start: Brazilian programmer produces tool that removes DRM from material with US-owned copyrights. Fully legal in his native country. Would this person be liable to prosecution in the US? And indirectly by producing such a tool banning himself from visiting the US for the rest of his life?

Ever heard of Dmitry Sklyarov?

Re:All cracking legal?

[wvmarle]

Yes I have (I recall the gist of it at least), and that was what I was thinking of indeed.

Most countries have the power of the courts strictly limited to crimes committed within their own country. Other countries limit their jurisdiction to crimes committed within their borders, and crimes committed outside those borders by their own citizens.

It seems though that the US has no such limitations: certain acts committed by foreigners in a foreign country where such act is fully legal, but which is illegal in the US, may be prosecuted under US law when that foreigner is in the US. And I recall even reports of US agents abducting foreign citizens in a foreign country, taking them to the US, and prosecuting them there.

Scary.

Re:Seems like it breaks the public domain to me.

[kvezach]

Like maybe, personal encryption?

Then it's no longer DRM, which is basically a program that has both lock and key yet tries to hide the key from the user except in "allowed" circumstances. Personal encryption doesn't include both the lock and the key; instead, you have the key and you use it to prove to the lock program that you have (unlimited) access to the encrypted volume/whatever.

Besides, it stands to reason that what you're encrypting is meant to be private, thus, since it's not released, it doesn't fall within the domain of copyright. You're not distributing anything, so limits to distribution don't apply.

Re:Nice trice - but who cares?

[FlyingGuy]

Here I am with MP's yet I feel compelled to respond to you...

If you RTFA you would see that it explicitly sites making a personal copy for use on whatever player you desire. But if you give a copy to a friend with the DRM broken then you are still committing a crime and that is fair since it is NOT fair use.

Now having said that, I certainly expect a flood of torrents to start comming from Brazil if this gets enacted into law because people still think that if they buy a DVD and then rip it to make a copy to "should be able to rip it and use on a portable player, media server etc." they somehow have the right to give it away to their pals and put it on a web server for everyone to have a copy.

That is why this begins with, "I - reproduction by any means or process of any work legitimately acquired, if made in one copy and by the copyist, for his private use and not commercial;" [emphasis is mine] because in point of fact doing anything other then making a copy for personal, non commercial use is a copyright violation even under these terms and is in point of fact illegal and that is as it should be

Not the first.

[krischik]

Switzerland explicitly allows DRM breaking since 2007.

Re:is a / has a test

[HungryHobo]

Just remember you have to call wait(568024668000) before doing anything with your new Brazilian.

They Can Aprove Whatever They Want

[famazza]

There is something you all need to know about Brasil (do you prefer New York or Nova Iorque?), and I can tell, I'm not any proud of it.

The congress can aprove whatever law they want in Brasil, even DMCA-like, which I think it's very unlikely. Once aproved there are no grantees that the law will be respected.

Many laws in Brasil exists only on paper, and has't any kind of regulation nor enforcement. People simply ignore them, and even police, or official fiscalization, does nothing about it, the law is completely ignored by all sectors of society.

For example. Rip a CD or a DVD is not legal in Brasil. But everybody does it, and nothing is done about it. I have discovered about this a couple of month ago.

Another example. It's not legal to sell pirated CDs or DVDs. But in any city, even the smaller ones, it's possible to buy illegal copied CDs and DVDs for as much as US$ 2,50 each movie, US$ 1,50 each CD. It's very easy to buy a XBox 360 game for US$ 10. And as easy as find someone selling this CDs and DVDs on streets is to find a policeman buying from them.

This kind of attitude is not only found in copyrighted material. It's easy for a minor to buy alcoholic beverages or cigars.

So, the congress can even aprove a DRM-like legislation, but it will certainly not leave the paper. USA hungry for copyright protection will be pleased, but the society will ignore the law and thigs will remain the same as they are today.

Try to discuss something more practical about Brasil.

Wrong about US' DMCA

[Sloppy]

Doctorow says

in the US, the Digital Millennium Copyright Act prohibits all circumvention of software locks, even when they don't protect copyright

but DMCA, in 1201(a)(1)(A), the part that prohibits playing DRMed works, says:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

"This title" is Title 17; the title that creates copyright protection. If there's a public domain work that has DRM, you are allowed to defeat the DRM. You don't need to use any of the exemption clauses that come later, use any of the rules created by the librarian of congress, etc. DMCA never applies to you in the first case.

1201(b)(1), the part that prohibits creating and transacting in tools that play DRMed works, says:

(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

Same as above. If there are public domain DRMed works out there, you are allowed to create software that plays them and sell a billion copies of it openly. (There might be some fighting over (B) there, but .. well, we can talk about that in another thread.)

DMCA very explicitly only applies to copyrighted works and the rights of the holders of those works. And AFAIK there hasn't been any case law that contradicts the plain reading of these parts. If you know of any, give references.

Furthermore, Doctorow says

for example, it would be illegal to for me to break the DRM on a Kindle to access my own novels, were they sold with Kindle DRM

but DMCA 12(A)(3) says

As used in this subsection—
(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner

If you are the copyright holder, just grant authorization. You (not Amazon!!!!) are the authority that the law is speaking about. You can grant it to yourself, or anyone else and under any conditions. This part of the law is utterly critical to the industries that bought this law and they can never safely repeal it without screwing themselves. If copyright holders couldn't grant permission, then there would be zero legal DVD or Blu-Ray players. Every single unit, even ones licensed by DVDCCA or whatever the Blu-Ray equivalent is, would be violations. It's implicit and hidden, but there's some legal mechanism where the movie makers grant authorization to the public to use these devices, and grant authorization to the electronics manufacturers to make them.

RTFL, Doctorow. Oh, and if you want to fuck around with DMCA, then start thinking about what document(s) you may have signed which authorize Kindle users to read you