Is it Copyrighted or a Trade Secret When Using DRM? 51
rcpitt writes "In a discussion on the Digital Copyright (Canadian, but relevant world wide) list I subscribe to, we were discussing the Free Trade Area of the Americas (FTAA) treaty. In thinking about an article that I subsequently wrote I came up with this thought:
If 'publishing' (in the context of when the copyright act takes effect for a work) were taken (by the courts for instance) to be defined only as that done without any rights management or extra contractual ties, then all works not so published would then become trade secrets (or something to that effect), and would lose (or never gain) the protection of the government via the copyright act and have to go after civil damages for individual transgressors. I'm interested in others' thoughts on this concept in light of Digital Rights Management, distribution of binary/source code (software), or music/video (multi-media) with an EULA that is restrictive might be construed as 'not publishing' in the context of whether the (insert your country) Copyright Act can be applied."
Words (Score:2, Insightful)
Re:Braces (Score:2)
Is that why you are using parentheses?
Brackets are the square ones. Braces are the curly ones.
Re:Braces (Score:1)
Americanism
Re:Braces (Score:1, Funny)
[me:ducks]
Re:Braces (Score:1)
Well (Score:5, Informative)
See here [slashdot.org]
Reprinted here:
3) Question regarding the DMCA and copyright terms - by rhadamanthus
If DRM-included hardware does become the law via the CBDTPA (SSSCA) or any other legislation, how does this interact with regards to copyright expiration? The DMCA makes it illegal to circumvent such DRM, thereby basically enforcing perpetual protection of the work. If the work is perpetually protected via this combination of law and technology, how can it be copyrighted legitimately, since the work will never *really* be able to join the public domain? This is analogous to trade secrets vs. patents, unless measures are taken to ensure the DRM encryption is removed once the copyright term is over. Or would that be illegal through the DMCA as well? The DMCA states, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." The title referred to is title 17 of the US Code, which covers copyright. I can therefore assume that removing copyright protections on expired copyrights would not be against the law. However, the DMCA also forbids the selling of tools to circumvent the very same DRM. I find it hard to believe that the RIAA/MPAA would let these tools become available regardless of the user's intent and/or rights under copyright expiration rules. Any comments about this apparent paradox?
O'Leary:
I don t believe that the CBDTPA is under consideration in the current Congress, nor are we aware of other pending bills that would mandate the use of digital rights management systems. However, your question seems more focused on the DMCA, specifically the portions of the DMCA that govern anti-circumvention technologies, i.e. Section 1201 of Title 18. For purposes of answering this question, the term DMCA refers specifically to Section 1201.
The DMCA prohibits trafficking (which includes manufacture, sale, distribution, importation, etc.) in tools (i.e., technologies, products, services, devices, etc.) that:
(a) are primarily designed to circumvent,
(b) are primarily marketed for use in circumventing, or
(c) have limited commercially significant purpose or use other than circumventing, either one of the following:
(1) a technological measure that effectively controls access to a work protected under this title [i.e., the Copyright Act] (see 18 U.S.C. Section) 1201(a)(2); or
(2) a technological measure that effectively protects a right of a copyright holder under this title (see Section 1201(b(1)).
The first type of control above will be referred to as an access control, the second as a copy control. In addition to the restrictions on trafficking, the DMCA also prohibits actual circumvention of access controls (see Sec. 1201(a)).
The DMCA s main purpose is to help protect the rights of copyright holders. However, the DMCA was also designed in part to protect and preserve the rights of people who use copyrighted works. First, the DMCA expressly states that it is not intended to affect limitations on copyright or defenses to infringement such as fair use. Second, the DMCA contains a number of exceptions and exemptions that, for example, allow in some circumstances reverse engineering, encryption research, and certain actions by libraries and certain educational institutions. Third, while the DMCA prohibits the actual circumvention of access controls, it does not prohibit the actual circumvention of copy controls. As the district court in the Elcom case noted, Congress omitted a prohibition against circumventing copy controls specifically so that users could engage in fair use (and, presumably, to use works that enter the public domain). (See U.S. v. Elcom, Ltd., 203 F.Supp.2d 1111, 1020
rosy DMCA picture (Score:4, Insightful)
Oh great. Nice to know that DMCA problems will be "sorted out" someday at great legal cost to some little-guy victim of the RIAA.
"Protect and preserve the rights of people who use copyrighted works"? Give me a break. You lose the ability to fast-forward ads in a DVD you buy. You lose the right to bring a DVD with you to another part of the world and play it on somebody else's DVD player. You lose the right to use free software to play your DVD. Just because it doesn't take away every one of our rights doesn't mean the DMCA can boast of protecting and preserving. It expands the power of copyright holders, period.
Re:rosy DMCA picture (Score:3, Interesting)
As always: the number one problem with US Government is that we have Lawyers Making Laws!
--rhad
Re:rosy DMCA picture (Score:1)
Re:rosy DMCA picture (Score:1)
Re:rosy DMCA picture (Score:2)
*sigh* You are exaggerating my statement, which as usual, makes one look incredibly stupid. Lawyers can write laws yes, thats all well and good. Only other people besides lawyers should have some say in
Re:rosy DMCA picture (Score:2)
If you explain it to the Supreme Court in terms of how it's effectively made copyrights unlimited, even they may find it unfair and rule it unconstitutional. They did say Congress was within it's rights to extend the copyright law, but they strongly hinted that enough was
Re:Well (Score:1)
Hmmm... just because you're paranoid doesn't mean they're not out to get you
Publishing not a requirement (Score:2)
Re:Publishing not a requirement (Score:2)
No, until 1976 publication was generally a requirement for copyright protection in the US. To wit:
22 was an alternative for foreign authors, but required publication as well. 12 permitted copyrights on some works that were not published, or at least not for sale, but it was v
Re:Publishing not a requirement (Score:2)
Rule in the USA (Score:2)
Re:Rule in the USA (Score:2)
That's not very permanent is it?
Re:Rule in the USA (Score:1)
The _copies_ of it sent to people may be designed to self destruct, but the original is permanent.
DRM does not cancel "publishing" (Score:4, Insightful)
If a book is only accessible to those who buy it from a store, is it published? Yes. Restrictions on use do not negate the reality of publication.
"publication" is not a requirement of copyright - not even a requirement of copyright registration. One can submit copyright registrations on unpublished works.
Re:DRM does not cancel "publishing" (Score:2)
Re:DRM does not cancel "publishing" (Score:1)
2.2 (1) For the purposes of this Act, "publication" means
(a) in relation to works,
(i) making copies of a work available to the public,
(ii) the construction of an architectural work, and
(iii) the incorporation of an artistic work into an architectural work, and
(b) in relation to sound recordings, making copies of a sound recording available to the public, but does not include
(c) the performance in public, or the communi
Re:DRM does not cancel "publishing" (Score:1)
Re:DRM does not cancel "publishing" (Score:2)
Thanks for the response. I'm not sure what objection you're answering here, I'm afraid. This does not provide any basis for the idea that a DRMed copy is not published. "Available to the public" does not imply "open."
Nor does this seem to provide any basis for the idea that publication is *necessary* for copyright (my understanding, which may be incorrect, for IANAL, is that this particular feature is one of the features of the Berne convention, and that Canada is a signatory). Is there some language earli
Re:DRM does not cancel "publishing" (Score:2)
Hi. Any country that has ratified the Berne convention or any more recent WIPO treaty will have had to enact law that requires copyright to vest in any qualifying creation. Publication is not necessary for copyright -- mere creation is sufficient. In fact, (first) publication is one of the exclusive rights enjoyed by the copyright holder.
SPAM on /. (Score:1)
Interesting Notion (Score:2)
Since DRM often removes the "First Sale" kinds of rights from the consumer, this seems only reasonable.
I think something like seven years would be a nice timeframe. That is DRM protected works would be no longer protected by law after seven years
Re:Interesting Notion (Score:2)
I guess if I were one of the big studios or publishing houses, I'd be torn about it. On the one hand, the studios seem to be trying to turn the purchase of a CD or DVD into a license anyway; a license with miserable terms for the purchaser, since t
Silly question (Score:2)
However, publication one form of duplication, so the only way to make sense of your question is:
"Should I be able to sell DRMed copies of Madonna CDs without paying her"?
Somehow I doubt this is what you meant.
Re:another dubious "Ask Slashdot" .. (Score:1)
The question was asked in the light of the public's (you and me) somewhat stilted ability to affect the law that lawyers eventually try to pervert in favour of their particular client of the time. The article I wrote is about the FTAA (Free Trade Area of the Americas) proposed treaty and in part was meant to be inflamatory (although I don't seem to do that very well) to Canadians in particu
element of truth (Score:2)
Publication is defined in the statutes (Score:2)
Re:Publication is defined in the statutes (Score:2)
1) If publication isn't required, why is it defined?
2) If the copyrighted 'work' is the DRM-ified 'original work', how does one go about breaking the DMCA? (really more of a rhetorical question)
Re:Publication is defined in the statutes (Score:2)
Because certain rules are different for non-published works.
Make it a suggestion both for copyright and patent (Score:1)
Make it so that software patents only hold if the source code is given in the patent application, and make it so that copright is only given if a copy of the work is available somewhere for copying after copyright expires.
But this is a suggestion, not the state of the law.
I like the idea.
Source code, right in the patent (Score:1)
Make it so that software patents only hold if the source code is given in the patent application
Source code is given in every software patent application. The "description of the preferred embodiment" is written in a pseudocode language called Legalese, which attempts to provide an English language representation of an algorithm. It remains for patent lawyers and programming language designers to codify Legalese into something compilable.
Ownership and Publication (Score:2)
Public doesn't mean available to anyone anywhere, it just means "released"
In the financial world we have publicly owned companies. But this does not prevent the "Public" owners are a select group, who may or may not sell to the public at large.
As far as I'm aware (Score:1)
Trade secret law may apply in addition to copyright, or instead of it.
If DRM'd versions are not copyrightable... (Score:1)