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 :)

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

@ JKjoker:

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

@ Luke Maciak:
it was a betamax tape :p

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.

(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?

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.

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.

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.