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Is it Copyrighted or a Trade Secret When Using DRM? 51

Posted by Cliff from the tough-questions dept.
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."
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Is it Copyrighted or a Trade Secret When Using DRM? More

Is it Copyrighted or a Trade Secret When Using DRM?

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  • Words (Score:2, Insightful)

    by Apreche ( 239272 )
    Law is all about words. It all depends on what the word publishing is defined as in the applicable laws. And like most here, IANAL, so I couldn't tell you. It is slightly interesting though.

  • Well (Score:5, Informative)

    by rhadamanthus ( 200665 ) on Tuesday October 28, 2003 @09:30AM (#7327462)
    This was my concern/confusion too when I posted this question to the DOJ IP Lawyers:
    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)

      by brlewis ( 214632 ) on Tuesday October 28, 2003 @10:42AM (#7327932) Homepage

      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.

      • I most certainly agree with you. The DMCA is nothing more than a tool bought by big-name copyright folks (RIAA, MPAA, Publishers, et. al.). The DOJ IP folks don't care one way or the other: its job security for lawyers.

        As always: the number one problem with US Government is that we have Lawyers Making Laws!

        --rhad

        • Yes, far inferior to having grade school children making laws. Or maybe chefs should make the laws. OF COURSE! Door-to-door salesmen should make the laws! How obvious.
          • Why not? If you have to live by them, it's only fair you have a say in making them.
          • That's like saying only chefs are truly capable of choosing what food tastes good, because they are trained in such matters. Well, I like cheez whiz and crackers sometimes and my grandma eats marmalade and sausage sandwiches, both of which most chefs probably don't think is the best tasting combination...

            *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

          • I, for one, believe that grade school children undoubtedly have a better sense of what's fair than most lawyers and any politician. If you explain the DMCA to school children in language they can understand they will tell you it's not fair.

            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

    • Thanks - I couldn't believe that I was the first to come up with this concept. I wonder if something like this is behind the move in the US to implement "Copyright" as soon as a work is written instead of published.

      Hmmm... just because you're paranoid doesn't mean they're not out to get you ;)
  • I have never heard of "publishing" as a requirement for copy right. At least here in the US, if I write it down, it implicitly and immediately is copyrighted to me (of course, going through the process of officially "registering" the copyright will improve my chances of success in case of plagiarism, etc.). That said there have been several historical "exceptions" to copyright, e.g. recipes, instructions I believe, stuff like that isn't copyrightable. Until recently "databases" of public info wasn't copy
    • I have never heard of "publishing" as a requirement for copy right.

      No, until 1976 publication was generally a requirement for copyright protection in the US. To wit:

      10 -- Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title.

      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

      • There have been bills considered and introduced (I don't have the numbers handy, but they were covered on slashdot a couple months ago) that would extend explicit protection to databases. The parent was confused if he thought they had been signed into law already.
  • I'm sure someone will correct me if I'm wrong, but I believe that the US does not require publication any more. To receive copyright protection, a creative work must be fixed on a permanent medium (including computer disk).

  • DRM does not cancel "publishing" (Score:4, Insightful)

    by kalidasa ( 577403 ) * on Tuesday October 28, 2003 @09:53AM (#7327601) Journal

    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.

    • This was why I asked relative to country, since in Canada the relavent section is:

      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

      • 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

        • 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.

  • While I don't think this would have any effect under current law, I think it might be worth trying to make something like this into law. That is, find a way to make works available only with DRM or through a license covered by something other than copyright.

    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

    • While I don't think this would have any effect under current law, I think it might be worth trying to make something like this into law. That is, find a way to make works available only with DRM or through a license covered by something other than copyright.

      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

  • Publication is not required for copyright. Freedom of access is not required for copyright (c.f. Scientology [xenu.net]).

    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.
  • As others have stated here, publication is not a requirement for copyright protection. Moreover, publication is defined in the copyright statutes. Someone has already posted the Canadian law, so here is the US law: 17 U.S.C. 101 [cornell.edu]:

    ''Publication'' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public perfor

  • Actually this is more a suggestion than a question:
    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.

    • 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.

  • If I make something, I own it. I don't have to publish it to own it. If someone steals my work, and publishes it, I still own it.

    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.
  • Copyright extends to all works, not just those that have been published.

    Trade secret law may apply in addition to copyright, or instead of it.
  • then expect there to be two "editions" of a product. First, the non-DRM'd version, priced at $10M (cdn), establishing copyright, and then the DRM'd version, controlling access to a copyrighted work.

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