Appeals court case could legalize breaking DRM for ‘fair use’
July 25, 2010 | 8:06 pm
The Courthouse News Service reports on an appeals court case that, if it stands, has the potential to redefine the way the Digital Millennium Copyright Act is interpreted in regard to intellectual property.
MGE UPS Systems, a manufacturer of uninterrupted power supplies, brought suit against GE for using a hacked hardware “dongle”, a device that plugs into a computer to authorize use of software, to access MGE software it needed to use to repair UPSes. The lower court judge dismissed MGE’s DMCA case against GE, and the 5th circuit appeals court upheld the decision.
On page 6 of the actual ruling (16-page PDF file), Judge Emilio M. Garza writes (emphasis mine):
However, MGE advocates too broad a definition of “access;” their interpretation would permit liability under § 1201(a) for accessing a work simply to view it or to use it within the purview of “fair use” permitted under the Copyright Act. Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision.
This is exactly the opposite of the way the DMCA has been enforced up to this point. Until this ruling, the DMCA has been applied to breaking Digital Rights Management (DRM) for any purpose (save for tri-annual exemptions), no matter how laudable. At DMCA exemption hearings, RIAA attorneys have insisted that professors should camcord clips off the TV screen rather than being permitted to break DRM to use them educationally.
If I’m reading this right—I’m certainly not a lawyer, after all—and a higher court doesn’t toss this ruling out, it could very well become explicitly legal to break DRM for the purpose of making “fair use” of media you already own—ripping your DVDs to play on your iPad, or breaking DRM to read your Mobipocket book on your iPhone. The DMCA would be effectively defanged.
(Except that even if breaking the DRM was legal, you could very well still be sued for doing it, and would have to prove in court that your use was fair. But at least you’d have a much better precedent on your side.)