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:
- have the resources or know-how to crack the DRM, or
- 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?).