Tim
Foreman, brother of lead singer Jon, has taken exception to the
Digital Rights Management software that appears on the
platinum-selling Christian band's latest release, Nothing Is
Sound.
"My heart is heavy with this whole copy-protection thing," he
wrote on the band's website last week after it came to his
attention that fans were having problems importing the band's
latest songs from CD to iTunes. So he posted full instructions for
disabling the DRM that accompanies the CD, including a link to an
open source program that helps to rip CDs.
He said he was "horrified" to learn about the new
copy-protection policy of major labels including Switchfoot's own
label, Sony. "I feel like as a band and as listeners, we've all
been through a lot together over the past ten years, and we refuse
to allow corporate policy to taint the family we've developed
together."
Foreman is not encouraging people to steal his band's music,
albeit his instructions could be applied in this way. Rather, his
motive is to improve the accessibility of CDs that have been
purchased legitimately by fans who then encounter limitations on
how they listen to the music. However, his posting risks more than
the band's relationship with Sony: Foreman's actions could amount
to a breach of the US Digital Millennium Copyright Act of 1998,
known as the DMCA.
Circumvention of DRM is controlled by section 1201 of the DMCA.
It makes it illegal to "offer to the public" any technology,
product, service, device, component, or part thereof, that:
- is primarily designed or produced for the purpose of
circumventing a technological measure that effectively controls
access to a protected work;
- has only limited commercially significant purpose or use other
than to circumvent a technological measure that effectively
controls access to a protected work; or
- is marketed by that person or another acting in concert with
that person with that person's knowledge for use in circumventing a
technological measure that effectively controls access to a
protected work.
It does not matter to the DMCA that the purpose of the
circumvention might be something other than illegal copying of a
CD; it simply bans such circumvention. Its limited defences do not
include Foreman's altruistic motive.
In the UK, similar laws exist. Regulations of
2003 amended the country's Copyright, Designs and Patents Act
of 1988 to create an
offence of providing a "service" either in the course of a
business or otherwise than in the course of a business to such an
extent as to affect prejudicially the copyright owner, the purpose
of which is to enable or facilitate the circumvention of effective
technological measures. It is unclear whether instructions would
amount to a "service".
Back in the US, the application of the DMCA to the posting
of circumvention instructions has not been tested in circumstances
like Foreman's. It may be difficult to argue that he has "marketed"
the instructions. But there have been legal actions.
Some anti-circumvention actions in the US
In 1999, eight movie studios sued 2600 Magazine for linking from
its website to code for software called DeCSS that defeated the
copy protection system of DVD players. It was written by a
Norwegian teenager called Jon Johansen to let him play DVDs on his
computer which ran on the Linux operating system. The New York
District Court and the Circuit Court of Appeals applied the DMCA to
ban 2600
Magazine from publishing or linking to DeCSS.
A separate case was brought in 1999 against California resident
Andrew Bunner who republished the code for DeCSS on his site. The
DVD Copy Control Association argued that his republication of DeCSS
constituted illegal misappropriation of its trade secret; but
Bunner successfully argued freedom of speech because he was
republishing information readily obtainable in the public
domain.
In 2000, Slashdot was
told by Microsoft to remove postings that contained
instructions on how to skip the end user licence agreement that is
presented as part of a Microsoft download. Microsoft's lawyers
argued that the postings breached the DMCA.
In 2002, there was media coverage about how an early form of DRM
on a Sony CD could be overcome with a marker pen. This was followed
by speculation that the news sites themselves (including
OUT-LAW.COM) had broken the DMCA's prohibitions on marketing by
covering the story – albeit the purpose of this speculation was to
highlight the flaws in the DMCA. "It's time for the DMCA to get the
butt-whooping it deserves from the First Amendment," wrote open
source news site
Newsforge.com.
The following year, a student revealed that another
copy-protection mechanism could be overcome by pressing the Shift
key on a computer when inserting the CD. A DMCA lawsuit was
threatened by the DRM developer, but later dropped to avoid "chilling" academic research.
The shift key trick plays a part in Foreman's instructions.
In 2004, Senator Orrin Hatch proposed a law that became known as
The Inducing Infringement of Copyrights Act of 2004 (it was
formerly called the INDUCE Act). It sought to address a ruling in
MGM's case against Grokster which found the P2P service not liable
for contributory copyright infringement. Merely advertising a
circumvention device or providing instructions for its use could
have been an offence under Hatch's plan. But his law was defeated
by pressure from technology and consumer groups.
Ultimately, the Supreme Court ruled against Grokster in 2005,
which made clear that "one who distributes a device with the object
of promoting its use to infringe copyright, as shown by clear
expression or other affirmative steps taken to foster infringement,
is liable for the resulting acts of infringement by third parties."
Of course, Tim Foreman could argue that he is not doing any such
thing.
Meanwhile, Switchfoot's fans are grateful for the tips. "You
should know that you're REALLY AWESOME for posting such a detailed
explanation," wrote a Florida fan called Chelsea.
Others simply question the eligibility of today's DRM systems
for DMCA protection. As blogger Steve Anderson put it, "to
circumvent a copyright protection system, surely you need to have a
copyright protection system that acts like one, rather than the CD
equivalent of a Post-It Note saying 'My milk, hands off.'"
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