DMCA and import hardware

[Gabriel]

OK, I've been thinking about this.

 

International IP rights are a massive snarled up mess. Just from my Robotech fandom, I've learned that much. Basically, since Harmony Gold seems to own the North American rights to the name Macross, it means no one can sell toys from the various Macross properties in the U.S. unless they go through Harmony Gold. And as goofy as that seems, the rights for other bits of IP are even wonkier with different companies owning different movies, characters, software, and other things in different regions.

 

Now, I'm not too clear on the DMCA, but I do know that there has already been one invocation of it in order to put someone behind bars for creating a piece of software which could potentially be used to break encryption and make a file usable. And I think one person has been sued for pointing out how to hold down a key on the computer keyboard in order to circumvent another type of copy protection.

 

So, I'm wondering if the various region codes and region locks count as something the DMCA makes it illegal to bypass. For example. Let's say I'm in Region 2, and I'm buying Region 1 discs. Normally, I wouldn't be able to play those discs because my player is locked to Region 2. But, if I import a Region 1 player, I can suddenly circumvent that protection and play my discs. Is that now illegal? And does the manufacturer have liability for that illegal act since they manufactured the "circumvention" equipment and allowed it to be sold to me?

[spacecadet]

Now, I'm not too clear on the DMCA, but I do know that there has already been one invocation of it in order to put someone behind bars for creating a piece of software which could potentially be used to break encryption and make a file usable.

 

I don't believe this has ever happened. Certainly there have been people put in jail for piracy, with the DMCA being one of the pillars of the prosecution. The Xbox modders that got busted, for example, but they were actually put in jail for selling a whole bunch of copied games along with every modded console.

 

I don't know of anyone who has been arrested for creating a piece of software that would "make a file useable". That could mean a whole lot of things, many of which are not illegal (just breaking encryption is not a DMCA violation - breaking encryption for the purposes of infringing copyright is a DMCA violation). There would have to have been more to it than that. The closest thing I can think of to the way you phrased that was a company that was forced to stop selling DVD copying software because they were sued. But nobody was thrown in jail, because no criminal law was broken. It was purely a civil matter.

 

And I think one person has been sued for pointing out how to hold down a key on the computer keyboard in order to circumvent another type of copy protection.

 

This definitely did not happen.

 

I remember this case well - the company behind the copy protection scheme that the shift-key method broke threw a hissy fit after that came to light and threatened all sorts of ridiculous nonsense in one of the funniest bits of PR I've ever seen (I'm not sure if I'm remembering this right, but they may have even threatened to have the guy's kneecaps broken and a horse's head stuffed between his bedsheets). They backed down literally the next day after everybody laughed at them all over the world and they realized they had no case.

 

So, I'm wondering if the various region codes and region locks count as something the DMCA makes it illegal to bypass. For example. Let's say I'm in Region 2, and I'm buying Region 1 discs. Normally, I wouldn't be able to play those discs because my player is locked to Region 2. But, if I import a Region 1 player, I can suddenly circumvent that protection and play my discs. Is that now illegal?

 

Er, this is an edit, but I'm gonna leave my original comments below. I misread this question. If you import a region 1 player, you're not infringing anything, and neither is the manufacturer. You're not circumventing anything in that case. My comments below pertain to region-free players and software.

 

We just saw what Sony did to Lik-Sang, but let's not forget that that wasn't a DMCA case. The situation was similar but they were sued under a UK law, not the DMCA, and it actually had nothing to do with circumventing electronic protection... the lawsuit was apparently won because the JP systems didn't "conform to UK safety standards." Just in case you were to read my paragraph above and then wonder about that.

 

Now, my original comments about region-free players:

 

---------------------------

 

Let me put it this way:

 

It is not illegal for YOU to do it.

 

It *is* illegal for someone ELSE to SELL you something that LETS you to do it. Or at least, that's the way the courts have interpreted the DMCA up to this point. But once you have that thing in your possession, you're not breaking any law by using it.

 

The basic point is that the DMCA makes specific exceptions for fair use, and it specifically says that electronic protection measures are only covered under the law inasmuch as they are bypassed for the purposes of infringing copyright. And if you're not distributing (i.e. you're not making a copy and giving it to someone else), then nothing you do bypassing a region code has anything to do with infringing copyright. Basically, as it relates to technological protection measures, the DMCA is just an extra thing they can get you for if you infringe copyright. It's like how if you grow and sell marijuana, you can be busted both for selling pot *and* for tax evasion.

 

The company that makes the software, or the hardware chip or whatever, to bypass region codes *may* be infringing copyright, and may be held liable if others use their tools to do so as well (so, for example, a lot of DVD players are both region-free and macrovision-free, and some will also strip CSS. Those are probably illegal to produce under the DMCA, but not illegal for *you* to use for personal use once you have one).

 

Let me also say that both the media and hardware industries apparently see it in their best interests to scare the hell out of as many people as they can with the DMCA. But the truth is it's a pretty loose law and it doesn't cover nearly as much as most people think it does. You can read it yourself - just Google it. Lawsuits under the DMCA have been pretty few in number and have met with mixed results - Lexmark lost their case against a third-party printer ink manufacturer, for example, as did a garage door company that tried to invoke it the same way. Successful lawsuits and prosecutions have usually had regular old copyright infringement as the main pillar, with the DMCA in support... but whenever you read about these cases online, it's always the DMCA that takes center stage.

 

I have never heard of a case where any end user was sued for a DMCA violation for circumventing any technological measure for personal use. Doesn't mean it couldn't happen - anybody can be sued for anything in this country - but the law itself has a lot of exemptions that should make it clear that that's not its intent.

Edited October 28, 2006 by spacecadet