Further reactions and finetuning

K.F. Lenz posted two followups on yesterday’s blog entry.

A reaction on the first one, DRM does not work (says Derek Slater)”:

Lenz says:

[Cell phone DRM] does offer more of a speed bump than most DRM on the personal computer platform.

That’s indeed what I am saying in my paper; the reason for this higher effectiveness as a speed bump is that DRM is not a choice, but a given in the Japanese cell phone market (cfr. p 7 of my paper). However, I don’t think that this higher degree of effectiveness means that DRM works here; piracy is still possible, although it is more complicated.

Lenz continues:

[I]f the position that DRM can never work was right, there would be really no need to worry about DRM in the first place.

I don’t agree with this. DRM (broken or not) prevents consumers from making legal copies in the context of limitations on rights, for instance (for an example in the realm of accessibility, see Joe Clark’s paper on “Accessibility implications of digital rights management”). Another problem with DRM is that it might be used for slowing down innovation in the digital devices market (cfr. p 12-17 of my paper).

Lenz’s second entry is about whether circumvention as such is prohibited in Japan.

When countering Lenz’s statement that “[in Japan,] [m]ere circumvention is only prohibited if it is done as a business in response to a request from the public” (cfr. art 120bis of the Japanese Copyright Law), I pointed to art 30 (1) (ii), which makes it illegal to circumvent the DRM wrapped around copyrighted works. Applying this to the circumvention of the DRM inside an e-book version of a public domain work was a step too far, though. I agree with Lenz’s correction:

Since there is no copyright to begin with, the limitation in Article 30 is not necessary. […]

[In Japan,] it is legal to extract content from DRM if the content in question is already in the public domain.”

I am wondering though, whether art 113 (3) (ii) could be used to prevent the circumvention of DRM wrapped around public domain works. Although art 113 (3) (ii) doesn’t talk about technological protection measures (art 2 (1) (xx)), it does mention the concept of rights management (art 2 (1) (xxi)) – can DRM circumvention be considered as an alteration or removal of rights management information?

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