DRM – Death of Public Domain?

I am not a lawyer. I don’t even play one on TV. I am by no means an authority on matters of copyright but I sometimes feel that I know more about it than an average person on the street. For example, each semester I ask my students what is public domain, only to stare at sea of blank stares for several minutes until someone has the sense to google the term on their phone and read the definition from Wikipedia verbatim without even attempting to paraphrase it. It’s a little bit scary… But I digress.

Here is an interesting observation – and please correct me if I’m wrong on this. It is my understanding that in the US works are protected by copyright law for a finite term, but the DRM they may be encumbered with is protected by DMCA indefinitely. So it would be entirely possible for something to become public domain, but remain under complete control of the former copyright holder due to a restrictive DRM.

Let me put it this way – if something becomes public domain, it means it belongs to all of us. It becomes property of the people. So if you want, you can purchase, download or borrow a public domain book or movie, digitize it, put it on your website, or make copies and sell them on a street corner. No one will care because it is no longer protected by copyright. This is by design – this way we as a society can retain the most valuable cultural works long after their creators, distributors and estates are gone. Unfortunately DRM puts a twist on this scheme.

Let’s say I make a movie tomorrow and then sell it online after protecting it with some sort of DRM. Since I am paranoid about people stealing my intellectual property I don’t give anyone the original source files because I don’t fucking have to. So the only copies available out there are the ones encumbered by DRM and pirate rips on torrent sites. Now let’s fast forward 120+ years or however long it takes for my movie to go into public domain. I am long gone, and the original source files for my movie may or may not exist – it doesn’t really matter because my surviving family does not have the legal obligation to release these files to the public anyway. They could if they cared, but let’s say they can’t be bothered. This is not an uncommon thing. Since current copyright term is almost a century long it is likely that only the most widely circulated copies of a work will still be around. Original manuscripts, prints and etc may be lost, damaged or simply deteriorate beyond repair.

My work is legally in public domain so you should be able to take it, copy it, modify it and etc… Unfortunately, you don’t have unencumbered copies. The only versions of my movie are sealed within a DRM cocoon that will prevent you from copying, or modifying the content – or perhaps even playing it without a valid license. Now the big question is: is it legal to circumvent DRM that protects a public domain work? Is it legal to use a copy which was made by violating the DMCA by circumventing the DRM while the work was still copyrighted?

I don’t know the answer to these questions. I tried to look it up, but I’m not having any luck finding concrete answers. My limited understanding is that circumventing DRM is ok, if it cannot possibly result in copyright infringement. If the contents are public domain, then there is no harm in breaking the container, no? On the other hand someone could claim that the tools and techniques used to break that DRM are illegal themselves because they could be just as easily applied to a copyrighted work protected by similar DRM scheme. Do we have any lawyerfolk reading this blog? If you could shed some light onto this problem, I’d be grateful.

Assuming that it is legal to “liberate” my work from it’s DRM coffin you would still have to:

  1. have the resources or know-how to crack the DRM, or
  2. be able to find a live torrent

If you are just an average citizen wanting to access my public domain work, you may not be able to do either. Cracking DRM is not a trivial task – or at least it is not supposed to be. It requires a certain degree of skill, expertise and determination. The people with these skills and expertise usually prefer to “liberate” new releases. So finding someone to help you, or an existing cracked copy may be problematic. In that case, my work will remain locked up forever – or at least until a person resourceful enough comes along and breaks it free.

Because of this, DRM is harmful to the very concept of public domain. It locks up our cultural heritage in locked boxes and then hides the keys by binding them to hardware platforms, making them only available per request and etc. Furthermore, our current laws are very protective of these boxes prohibiting any attempts to crack them open. Our grand-grand children may one day wake up and realize they don’t really know that much about the 20th century popular culture and entertainment because all that is left is bunch of locked boxes with no keys and a law that bans the use of a crowbar as a box opening device. This is not good.

Of course my whole point is moot because everyone knows that anything created in United States after Mickey Mouse will never actually enter public domain. Next time Mickey is about to slip, the corporate owned government will just extend the term for another century or two (I mean they did it twice before – you don’t think they are going to try this again?).

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9 Responses to DRM – Death of Public Domain?

  1. IceBrain PORTUGAL Mozilla Firefox Linux Terminalist says:

    IANAL.

    I think you are allowed to break the DRM in public domain because the “circunvention” is defined in Section 103 as:

    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; and

    Emphasis mine. In the case of a work under PD, you do have the authority of the copyright owner – it’s you!

    I think you’re right that the tools themselves are illegal – no need to read the law, just look at what happened to DeCSS.

    Yes, this is harmful to the public in general, as even if they’re allowed to break DRM, that will cost an extra effort.

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  2. copperfish Opera Linux Terminalist says:

    I worry more about format shifts. So the DVD you own is encumbered by DRM now, but in 50 years time when the copyright lapses will you even have a device that will play that DVD? Probably not.

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  3. jambarama UNITED STATES Mozilla Firefox Windows Terminalist says:

    The vast majority of commercially viable content does have a non-DRM’d copy deposited at the library of congress you can get when the copyright expires. So that’s something, even though it is a tiny minority of existing content.

    IceBrain has a good idea, but a work in the public domain is simply not copyrighted—there is no copyright owner. So this idea won’t work, but there is a simpler solution.

    Unfortunately, your suggestion: “circumventing DRM is ok, if it cannot possibly result in copyright infringement” – is wrong. It doesn’t matter if you’re breaking copy-protection for legal, good, just, or virtuous reasons (unless you fall under one of the narrow exceptions).

    The DMCA does say says “Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.” Of course that has been read as hollow by courts – unlike infringement, fair use can’t protect you from a DMCA suit.

    The DMCA simply makes it unlawful to “circumvent a technological measure that effectively controls access to a work protected under this title.” Effective control seems to be any attempt, no matter how broken (see CSS), and “work protected under this title” has been interpreted as any copyrighted/copyrightable work.

    The DMCA also has a ton of exceptions to the anti-circumvention clause, but they’re very narrow and not relevant to this situation. The only possibility was if you could convince the library of congress to make a temporary 3 year exception.

    Anyway here’s the simple answer. A work in the public domain is simply not “a work protected under this title” [the DMCA]. The DMCA is designed to protect copyrighted works, when a work falls out of copyright, DMCA protection expires as well.

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  4. jambarama UNITED STATES Mozilla Firefox Windows Terminalist says:

    (broken up into 2 parts for readability)

    Of course that does nothing to alleviate the problem you propose – that average people will not have the ability to break the encryption when the work is put in the public domain. The first DRM I know of, is ACP on old VHS tapes around 1985. If that copyright expires as early as possible (70 years after 1985 is 2055), who knows that the world will look like – who will even have a VCR then? That’s almost Edison’s wax cylinders now.

    Legal scholars have written a lot written about the “double dipping” of protection – both technological and legal. Since the DMCA is a more complete lock to access than copyright – e.g. copyright’s exceptions are more broadly useful than the DMCA’s exceptions – you’re right about it affecting the public domain.

    If you have a working VCR, who will be able to break the DRM? I don’t know, maybe we’ll have superfast computers that will know how to do this stuff automatically. Will infringing material & pirates still exist? Will they be ubiquitous? Maybe all the copyrighted material on the planet will be collected into some google-brain.

    I guess that’s a long way of saying, who knows?

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  5. Luke Maciak UNITED STATES Mozilla Firefox Linux Terminalist says:

    Heh!

    This reminds me of that episode of Cowboy Bepop where they find an old VHS tape and go on a crazy quest to find a device that would be able to play it back. Everyone thinks it will be something huge, historical and worth tons of money. Then it turns out it is someone’s vacation video or something silly like that…

    There is also the question of media decay. What is the lifespan of your average VHS tape stored in less than ideal conditions (ie. on a shelf in your house for example). I’m pretty sure that 70 years is probably “pushing it”. I think I had some tapes that my parents shot in the mid 80′s and they are slowly withering away as we speak.

    So even if we still do have the technology needed to play back these tapes in 70 years, it is not certain if they will still be playable.

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  6. JKjoker ARGENTINA Mozilla Firefox Windows says:

    @ Luke Maciak:
    it was a betamax tape :p

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  7. Luke Maciak UNITED STATES Mozilla Firefox Windows Terminalist says:

    @ JKjoker:

    Ah, even better! LOL I saw that a long time ago and I couldn’t recall if it was VHS or not. :)

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  8. ZeWrestler UNITED STATES Mozilla Firefox Windows says:

    You should e-mail that question to the EFF for the official answer.

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  9. Liudvikas LITHUANIA Mozilla Firefox SuSE Linux says:

    IceBrain wrote:

    I think you’re right that the tools themselves are illegal – no need to read the law, just look at what happened to DeCSS.

    Tools are by no way illegal. Anyone saying otherwise is bending and twisting the law of common sense*.

    I’m of an opinion that copyright must not extend beyond the first decade. Any longer beyond that is harmful to the public.

    *Law of common sense: Rules and laws by which I adhere. May not be recognized by anyone, but they demand only my interpretation and no money can influence them :)

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