Federal judge says you can break DRM if you're not doing so to infringe copyright

Here's some remarkable news: a judge in a New Orleans-based 5th Circuit Appeals Court has ruled that the Digital Millennium Copyright Act's ban on breaking DRM only applies if you break DRM in order to violate copyright law. This is a complete reversal of earlier rulings across the country (and completely opposite to the approach that the US Trade Representative has demanded from America's trading partners). In the traditional view, DRM is absolutely protected, so that no one is allowed to break it except the DRM maker. In other words, a film-maker isn't allowed to take the BluRay DRM off her own movie, a video game programmer can't take the iPad DRM off her own game, and an audiobook author can't take the DRM off his own Audible book.

So this ruling is pretty interesting news, as it constitutes a circuit split with pretty much the rest of the nation's courts, which is often a precursor to a Supreme Court challenge. What's more, the defendants here are General Electric, not hackers in black t-shirts or sketchy offshore Xbox-modchip vendors (theoretically the law shouldn't care if the defendant is a hobo or a billionaire, but in practice, billionaires usually get better precedents, and not just because they can afford better lawyers).

It's up to the plaintiff, MGE, to appeal to the Supremes, but even if they don't, it's only a matter of time until there are new cases in the Fifth Circuit (or other circuits that follow its lead) that lead to highest court handing down some new law on this. Let's hope they see the sense of Judge Garza: "Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the (Digital Millennium Copyright Act's) anti-circumvention provision."

Court Backs Dismissal of Digital Copyright Claim (via /.)


  1. Unfortunately, I think that most everyone is (understandably) misreading the case. This is largely because the reading that some courts have given the DMCA is unimaginably insane.

    There are a number of cases, mostly involving things like garage door openers, SCADA systems, and embedded software and firmware, where the access is not related to any sort of traditional copyrighted material. Some courts have held that despite the fact that there’s no nexus with copyright law, the anti-circumvention provisions of the DMCA apply regardless. Other courts have held otherwise.

    This case seems to be part of a general trend toward sanity in DMCA claims related to embedded systems. I seriously doubt (despite the unusually expansive wording of that sentence) that this will be extended beyond embedded systems. This case is within an established (and very narrow) genre of DMCA cases, and is unlikely to be applied outside it.

    To hold otherwise would require that courts read 1201(a)(1)(A) entirely out of the DMCA. I doubt the (relatively conservative) 5th Circuit would be willing to do that.

    1. This interpretation seems to make more sense, although the full case text would help here. It seems that the judge is saying that if there is no copying, the DMCA does not apply (copyright laws protect against copying, not viewing/using).

      For example, if you had old firmware on your blu-ray player and couldn’t access a disc you owned, you could legally break the DRM to READ the disc. But if you copied it, you would be in violation of the DMCA for busting the DRM.

      1. Ahhh, no. That is not what this is saying:

        “The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.”

        Making a BACKUP copy of a book, movie, album, DOES NOT impinge on the protections of the Copyright Act. However, companies like Amazon, Apple, Sony and the entertainment industry, love to tell you that you CAN NOT backup their products because that violates the DMCA.

        It does not.

  2. DMCA oulaws simple things like watching a DVD on my Wii, or worse, watching a regionX dvd on my regionY player. I have region1 discs that won’t play on my region1 player (that blocks pal and region2 regardless) if I let it play my region0 discs. (including CBC-TV releases, in the ultimate irony)

    Given the extremely restrictive DMCA wording, there are only two possible outcomes:

    1) Nothing gets reproduced, ever, under any circumstances, even for promotion, except with the express payment of the promoter (in practice, promoters don’t want to pay for every placement, and don’t want trailers to be illegal)

    2) Movie trailers become legally equivalent to pirating a whole movie, at which point everyone becomes a criminal, and ignores this silly law.

    1. Number 2 is what happened. Everyone that can, ignores the law and are criminals. Everyone else just gets irritated. Its hard to see that as helping create a sustainable business model.

  3. It’s interesting to note that the three countries with the worst reputations for “copyright theft”, piracy or whatever you want to call it – China, India and Brazil – are also three of the strongest economies in the world at the moment. That has to say something about the restrictive practices of the corporations with their paranoia about IP theft, which they equate with physical and/or fiscal theft.

  4. I am always somewhat surprised that more is not made of the High Court of Australia decision on technological protection measures in Stevens v Sony:
    http://www.austlii.edu.au/au/cases/cth/HCA/2005/58.html In that superior court decision, the court unanimously took the view that technological protection measures only applied in relation to copyright infringement – and did not operate where there were defences in existence, like the defence of fair dealing, or the library and archives exceptions.

  5. theoretically the law shouldn’t care if the defendant is a hobo or a billionaire, but in practice, billionaires usually get better precedents, and not just because they can afford better lawyers

    I think the big difference in treatment between black-shirted-hackers and suited-execs comes from the former having a higher hill to climb to establish purity of motive. The suits have the money to buy a license if one is available at a fair price, and the lawyers/accountants/etc. to tell them that is a more reasonable approach. The hackers, while ostensibly motivated by high-minded ideals, often find themselves coincidentally working to remove the barriers at the core of the practice of using DRM to prevent copyright infringement.

    So as much as I agree with the hackers, and not just because I’m too cheap to want to pay for a movie every time I watch it on a new device or whatever, it’s hardly surprising that they face more skepticism from the legal system.

    That said, this precedent seems more in line with not allowing printer manufacturers to use DRM to prevent third-party ink, and other bullshit like that. I suppose there’s always the outside chance the stars could align and the SCOTUS could use this case to allow DRM-circumvention for any non-infringing use.

  6. I actually did that for an author – I converted some DRM’d files to text, because the author didn’t have digital copies of some of his short stories on hand. Saved me a boatload of time and effort in scanning old magazines.

    Nice to know I’m exonerated.

  7. So does this mean that I can decrypt all my Kindle purchases legally? The files can already be copied from place to place legally by simple drag-and-drop via the USB interface, so my decryption would not be for the purpose of copying, only for viewing. I realize, of course, that I could then distribute these e-books to anyone else, and they would be able to view them on their own devices without paying, which would violate copyright law. But is the simple fact of decrypting them for my own use still considered illegal after this ruling?

  8. Finally. This means I CAN have backup copies of books from an e-reader. I’m not sharing them, but if I have to replace the device, it sure would be nice to have my library all backed up and waiting for me.

    IOW’s, to put it mildly, Amazon can now stuff it. I can, and will, legally circumvent the DRM on my Kindle and backup my books.

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