legal subtleties (was Re: What change could we make?)

Mark Watson <watsonm@netflix.com> wrote:
> On Jun 21, 2013, at 7:35 AM, Nikos Roussos
> <comzeradd@mozilla-community.org> wrote:
>
> > Another principle that DRM contradicts is that it disregards
> > consumer rights. Quoting Norbert Bollow from a previous email:
> > "rights that people have as a matter of law as soon as they have
> > legal access to a digital good"
> 
> I am not a lawyer, so I am wary of stepping into an area in which I do
> not have expertise, but just as a personal opinion and as a matter of
> logic it seems the situation cannot be as black-and-white legally as
> stated above. If so, there would surely be numerous legal challenges
> to the widespread use of DRM. If it is indeed a 'right ... as a matter
> of law' there should be cases upholding that right and striking down
> the use of DRM. That's not to say there is no public interest in the
> effectiveness of limitations on copyright, just that it is a balance
> not a black-and-white thing. Did I miss something ? Or, are you
> arguing that you believe this is clear, legally, but there isn't a
> complete legal consensus on that ?

I can explain the legal situation here in Switzerland... there are
indeed some legal subtleties.

If you legally have access to some content (for example you bought a
DVD with a film) there is a number of things that you are allowed to
do with this content as a matter of law. These are rights in a
somewhat limited sense: You can't sue the person who sold you
the DVD or whatever, not the copyright holder, to make it possible
for you to do these things. But they don't have the right to sue you
to stop doing these things either. For example, if the DVD can't be
accessed in a straightforward manner because of a "content scrambling
system", I can't force the DVD vendor to give me a DVD that doesn't
use the "content scrambling system", but they can't sue me to stop
writing or using software which circumvents that "content scrambling
system" in order to allow me to watch the DVD.

One of these “permissions as a matter of law” (weak kind of right) is
that you are allowed to make copies and give away copies to people in
your “private circle” (family and friends). This is something that DRM
systems will typically prevent. That does not make the DRM system
illegal under the current Swiss law. However, if the DRM system tries to
prevent giving copies to friends, you are allowed to circumvent the DRM
system in order to be able to do that. You can also complain about the
DRM system to a special government institution called the “Observatory
of Technical Protection Measures”. The Observatory isn't getting a lot
of reports so far, but when it gets reports, it is supposed to
investigate the issue to see whether there is in fact an “abuse of a
technical protection measure” (the meaning of “abuse” in this context
is that users are prevented from doing things that they are allowed as
a matter of law), and report on whether a lot of such abuses are
getting reported.

The idea behind this is that if a lot of such complaints about abuses
start happening, Switzerland wants to be able to react quickly, and
address the problem is some way, presumably by imposing some
requirements on DRM systems. Maybe by that time some DRM systems will
be on the market that actually allow people to distribute copies within
their private circle. If that is the case, Switzerland might then
outlaw all DRM system which do not have that property.   

Greetings,
Norbert

Received on Friday, 21 June 2013 17:01:36 UTC