[Ecommerce] Christian rockers risk wrath of DMCA with DRM tips

[Michelle Childs]

http://www.theregister.co.uk/2005/09/21/christian_rockers_drm_tips/
Christian rockers risk wrath of DMCA with DRM tips
'My heart is heavy with this whole copy-protection thing'
By Team Register
Published Wednesday 21st September 2005 08:47 GMT

The bassist of Switchfoot is teaching fans how to disable the copy
protection measures in the San Diego rock band's own CDs, presumably
upsetting Sony and perhaps unwittingly testing the anti-circumvention
rules of the Digital Millennium Copyright Act.

Tim Foreman, brother of lead singer Jon, has taken exception to the
Digital Rights Management software that appears on the platinum-selling
Christian band's latest release, Nothing Is Sound.

"My heart is heavy with this whole copy-protection thing," he wrote on the
band's website last week after it came to his attention that fans were
having problems importing the band's latest songs from CD to iTunes. So he
posted full instructions for disabling the DRM that accompanies the CD,
including a link to an open source program that helps to rip CDs.

He said he was "horrified" to learn about the new copy-protection policy
of major labels including Switchfoot's own label, Sony. "I feel like as a
band and as listeners, we've all been through a lot together over the past
ten years, and we refuse to allow corporate policy to taint the family
we've developed together."

Foreman is not encouraging people to steal his band's music, albeit his
instructions could be applied in this way. Rather, his motive is to
improve the accessibility of CDs that have been purchased legitimately by
fans who then encounter limitations on how they listen to the music.
However, his posting risks more than the band's relationship with Sony:
Foreman's actions could amount to a breach of the US Digital Millennium
Copyright Act of 1998, known as the DMCA.

Circumvention of DRM is controlled by section 1201 of the DMCA. It makes
it illegal to "offer to the public" any technology, product, service,
device, component, or part thereof, that:

is primarily designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a protected
work;
has only limited commercially significant purpose or use other than to
circumvent a technological measure that effectively controls access to a
protected work; or
is marketed by that person or another acting in concert with that person
with that person's knowledge for use in circumventing a technological
measure that effectively controls access to a protected work.
It does not matter to the DMCA that the purpose of the circumvention might
be something other than illegal copying of a CD; it simply bans such
circumvention. Its limited defences do not include Foreman's altruistic
motive.

In the UK, similar laws exist. Regulations of 2003 amended the country's
Copyright, Designs and Patents Act of 1988 to create an offence of
providing a "service" either in the course of a business or otherwise than
in the course of a business to such an extent as to affect prejudicially
the copyright owner, the purpose of which is to enable or facilitate the
circumvention of effective technological measures. It is unclear whether
instructions would amount to a "service".

Back in the US, the application of the DMCA to the posting of
circumvention instructions has not been tested in circumstances like
Foreman's. It may be difficult to argue that he has "marketed" the
instructions. But there have been legal actions.

Some anti-circumvention actions in the US
In 1999, eight movie studios sued 2600 Magazine for linking from its
website to code for software called DeCSS that defeated the copy
protection system of DVD players. It was written by a Norwegian teenager
called Jon Johansen to let him play DVDs on his computer which ran on the
Linux operating system. The New York District Court and the Circuit Court
of Appeals applied the DMCA to ban 2600 Magazine from publishing or
linking to DeCSS.

A separate case was brought in 1999 against California resident Andrew
Bunner who republished the code for DeCSS on his site. The DVD Copy
Control Association argued that his republication of DeCSS constituted
illegal misappropriation of its trade secret; but Bunner successfully
argued freedom of speech because he was republishing information readily
obtainable in the public domain.

In 2000, Slashdot was told by Microsoft to remove postings that contained
instructions on how to skip the end user licence agreement that is
presented as part of a Microsoft download. Microsoft's lawyers argued that
the postings breached the DMCA.

In 2002, there was media coverage about how an early form of DRM on a Sony
CD could be overcome with a marker pen. This was followed by speculation
that the news sites themselves (including OUT-LAW.COM) had broken the
DMCA's prohibitions on marketing by covering the story =96 albeit the
purpose of this speculation was to highlight the flaws in the DMCA. "It's
time for the DMCA to get the butt-whooping it deserves from the First
Amendment," wrote open source news site Newsforge.com.

The following year, a student revealed that another copy-protection
mechanism could be overcome by pressing the Shift key on a computer when
inserting the CD. A DMCA lawsuit was threatened by the DRM developer, but
later dropped to avoid "chilling" academic research. The shift key trick
plays a part in Foreman's instructions.

In 2004, Senator Orrin Hatch proposed a law that became known as The
Inducing Infringement of Copyrights Act of 2004 (it was formerly called
the INDUCE Act). It sought to address a ruling in MGM's case against
Grokster which found the P2P service not liable for contributory copyright
infringement. Merely advertising a circumvention device or providing
instructions for its use could have been an offence under Hatch's plan.
But his law was defeated by pressure from technology and consumer groups.

Ultimately, the Supreme Court ruled against Grokster in 2005, which made
clear that "one who distributes a device with the object of promoting its
use to infringe copyright, as shown by clear expression or other
affirmative steps taken to foster infringement, is liable for the
resulting acts of infringement by third parties." Of course, Tim Foreman
could argue that he is not doing any such thing.

Meanwhile, Switchfoot's fans are grateful for the tips. "You should know
that you're REALLY AWESOME for posting such a detailed explanation," wrote
a Florida fan called Chelsea.

Others simply question the eligibility of today's DRM systems for DMCA
protection. As blogger Steve Anderson put it, "to circumvent a copyright
protection system, surely you need to have a copyright protection system
that acts like one, rather than the CD equivalent of a Post-It Note saying
'My milk, hands off.'"

Copyright =A9 2005, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.




--
Michelle Childs -Head of European Affairs
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