Understanding the MGE DMCA Ruling

The story about a ruling in the MGE case crossed my feeds yesterday but I was too frazzled to dig into it and comment. That was an oversight, this ruling could have farther ranging impacts, restoring some of the non-infringing uses that the DMCA stripped out of copyright on digital works with its anti-circumvention provision.

Mike Masnick at Techdirt has a good summary of the facts of the case and the critical nuances in the ruling. Unfortunately, breaking DRM for any reason is still forbidden but the ruling allows for using a pre-existing tool or break to circumvent, clearly distinguishing it from the activities of hackers like DVD Jon. If a means of getting past the digital locks already exists and the use to which you put the work is non-infringing, you now have a better chance of evading a nasty DMCA hammer blow.

Creating circumvention tools and trafficking them is still barred by the DMCA. Even if you have the knowledge to crack DRM on the spot, that is also still illegal. That is actually a very significant narrowing of the the scope of the DMCA which previous to this ruling was subject to much more blatant exceptions like debunking claims that a printer cartridge or garage door opener qualify as copyrightable works. The ruling is also limited to the Fifth Circuit but occasionally judges in other circuits will read precedents from other circuits so there is a chance this interpretation of the DMCA may spread.

The debate around the latest Canadian copyright bill, C-32, borrowing even more heavily from the DMCA than past drafts, has given me reasons to think more on DRM lately. It has been easy to become a bit complacent as the music industry has effectively abandoned DRM but it still carries the same legal threat it ever did. If C-32 passes, Canada will get any number of progressive privileges for digital content–except if a work is protected by DRM. This really pushes on the question of why digital content should be handled with such exceptionalism.

I’ve been wondering about a more reasonable compromise, assuming we’ll never be able to purge DRM from the law books. What if we could re-cast it, through an amendment to the DMCA, to treat it like registration. If you break a lock and make non-infringing use of the work, then there is no room for complaint. If your use runs afoul of the more traditional contours of copyright and a digital lock had to be broken to do it, how about doubling or trebling damages, then and only then?

DRM as an absolute means of protection is an abject failure. There are tons of technical and non-technical reasons for this but the fact remains that DRM has yet to stop anyone from accessing a work for legitimate or illegitimate purposes. If we are stuck with it, why not use it then to bolster claims of willful infringement rather than turning innocuous uses such as exercising our every diminishing free speech privileges under copyright into a criminal act?

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