Out-Law News | 20 Sep 2005 | 5:06 pm | 4 min. read
"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:
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.
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.'"