Brazil Forbids DRM On the Public Domain

nunojsilva writes "Cory Doctorow reports that the Brazilian equivalent of DMCA explicitly forbids using DRM-like techniques on works in the public domain. 'Brazil has just created the best-ever implementation of WCT [WIPO Copyright Treaty]. In Brazil's version of the law, you can break DRM without breaking the law, provided you're not also committing a copyright violation.' This means that, unlike the US, where it is illegal to break DRM, in Brazil it is illegal to break the public domain."

Re:In Soviet Brazil

[cappp]

Nope. This is a proposal, not an actual change to the laws. The article on ArsTechnica [arstechnica.com] makes that very explicit.

For those interested in reading the entire thing - it's available here [google.com].

Re:In Soviet Brazil

[cappp]

The proposed "Fair Use" rules in Brazil read:

Article 46. Not an insult to the use of copyright protected works, dispensing with even the express prior authorization of the owner and the need for compensation by those who use them in the following cases:
I - reproduction by any means or process of any work legitimately acquired, if made in one copy and by the copyist, for his private use and not commercial;

II - reproduction by any means or process of any work legitimately acquired, where to ensure its portability or interoperability, for private, noncommercial

III - playing in the press, news or informative articles, published in newspapers or magazines with the name of the author, if signed, and the publication of which were transcribed;

IV - to use the press, in speeches at public meetings of any kind or of any work, and when it is justified to the extent necessary to fulfill the duty to report on news events;

V - the use of literary, artistic or scientific works, phonograms and broadcasting of radio and television shops, exclusively for customer demonstration, provided that the said establishments market the media or facilities to enable its use;

VI - a theatrical performance, recitation or declamation, the audiovisual display and musical performance, provided they have no intention of profit and that the public can attend free of charge, held in the family circle or in schools, when intended for use by bodies teachers and students, parents and other persons belonging to the school community;

VII - the use of literary, artistic or scientific evidence to produce judicial or administrative;

VIII - the use in any work of short extracts from existing works, of whatever nature, or entire work, when the visual arts, where the use itself is not the main goal of the new work that does not jeopardize the operation normal work reproduced or unjustifiably prejudice the legitimate interests of authors;

IX - the reproduction, distribution, communication and the provision of public works for the exclusive use of disabled persons where the disability involves, for the enjoyment of the work by those people need to use at any particular process or still some adaptation of the protected work, and provided that no commercial purpose in the reproduction or adaptation;

X - reproduction and making available to the public for inclusion in portfolio or professional resume, to the extent required for this purpose, since he who wishes to disseminate the works by such means is one of the authors or person depicted;

XI - the use of pictures, or other form of representation of the image, custom, when performed by the object owner ordered, with no opposition from the person represented or, if dead or absent, his spouse, his ascendants or descendants;

XII - playback of lectures, conferences and classes for those to whom they are addressed, prohibited the publication, regardless of the purpose of profit, without prior written permission of whom ministered;

XIII - reproduction necessary for conservation, preservation and storage of any work, non-commercial purposes, if carried out by libraries, archives, documentation centers, museums, film and other museum institutions, to the extent required to meet its goals;

XIV - the quotation in books, newspapers, magazines or other means of communication of passages from a work for study, criticism or controversy, to the extent required for the specific purpose, stating the name of the author and origin the work;

XV - a theatrical performance, recitation or declamation, the audiovisual display and musical performance, provided they have no intention of profit, which the public can attend free of charge and they occur to the extent required for order to achieve and the following assumptions :
a) for educational purposes only;
b) with the purpose of cultural diffusion and multiplication of public opinion formation or discussion by film soci

All cracking legal?

[wvmarle]

If it is legal to crack/circumvent DRM when you are "not committing a copyright violation", it seems that it is also OK to crack DRM on other works, as long as you do not redistribute it. A few comments up someone posted the actual Brazilian fair use rules, and those seem pretty fair, and explicitly allow a.o. for creating a copy for personal use.

This would make it legal to say strip DRM from your legally bought iTunes songs, in order to make your personal copy.

It would be legal to rip BluRay discs and removing the DRM in the process, again to make your own personal copy.

Redistributing said material with or without DRM in place would be a copyright violation, and rightful so.

It would presumably be legal to create tools to do this - it seems reasonably to expect that to distribute such tools would even be legal.

Now the real fun can start: Brazilian programmer produces tool that removes DRM from material with US-owned copyrights. Fully legal in his native country. Would this person be liable to prosecution in the US? And indirectly by producing such a tool banning himself from visiting the US for the rest of his life?

Re:Seems like it breaks the public domain to me.

[kvezach]

Like maybe, personal encryption?

Then it's no longer DRM, which is basically a program that has both lock and key yet tries to hide the key from the user except in "allowed" circumstances. Personal encryption doesn't include both the lock and the key; instead, you have the key and you use it to prove to the lock program that you have (unlimited) access to the encrypted volume/whatever.

Besides, it stands to reason that what you're encrypting is meant to be private, thus, since it's not released, it doesn't fall within the domain of copyright. You're not distributing anything, so limits to distribution don't apply.

Re:In Soviet Brazil

[TubeSteak]

http://en.wikipedia.org/wiki/List_of_countries'_copyright_length [wikipedia.org]
Brazil: Life + 70 years

It's a joke to talk about "a fine and balanced approach to copyright law" while ignoring life + 70 years of copyright protection.
They'll be doddering seniors before anything created in their lifetime is public domain.

Re:Nice trice - but who cares?

[FlyingGuy]

Here I am with MP's yet I feel compelled to respond to you...

If you RTFA you would see that it explicitly sites making a personal copy for use on whatever player you desire. But if you give a copy to a friend with the DRM broken then you are still committing a crime and that is fair since it is NOT fair use.

Now having said that, I certainly expect a flood of torrents to start comming from Brazil if this gets enacted into law because people still think that if they buy a DVD and then rip it to make a copy to "should be able to rip it and use on a portable player, media server etc." they somehow have the right to give it away to their pals and put it on a web server for everyone to have a copy.

That is why this begins with, "I - reproduction by any means or process of any work legitimately acquired, if made in one copy and by the copyist, for his private use and not commercial;" [emphasis is mine] because in point of fact doing anything other then making a copy for personal, non commercial use is a copyright violation even under these terms and is in point of fact illegal and that is as it should be

Re:All cracking legal?

[shutdown -p now]

Now the real fun can start: Brazilian programmer produces tool that removes DRM from material with US-owned copyrights. Fully legal in his native country. Would this person be liable to prosecution in the US? And indirectly by producing such a tool banning himself from visiting the US for the rest of his life?

Ever heard of Dmitry Sklyarov [wikipedia.org]?

Re:In Soviet Brazil

[the_B0fh]

actually, it was a court clerk, no the supreme court that said so. they just found it convenient to allow that to stand. someone should challenge this before the supreme court.

Re:not unusual

[Anonymous Coward]

Really not surprising. When the US was a small, backwater english colony, it was also famous for its piracy (of books, in that time).

It is the countries with the massive content industries that have the strict copyright regimes. Brasil isn't home to Hollywood or very many international music superstars.

Actually, it was infamous for its piracy into the 1940's for music and well into the 1980's for technology. It is still infamous for pirating/"adapting" movie plots (this is possible to do in large scale since Americans never look at forreign movies and never read forreign books). E.g. during the Korean and Vietnam war, US companies pirated many Swedish weapon, positioning and communication systems (according to Swedish law at the time, it was illegal to export those systems to US as it was an aggressor in a war on forreign ground and those action was not sanctioned by the right international authorities). Some of these weapons (and two types of compasses) is still manufactured within USA, still without paying any license fees. Another more recent exemple is US patent 4303986 from 1978.

US companies is also notorious for stealing brand names. At the moment I can only recall Cohiba and Silva, but that's because, as an European, I don't use products made for Asian markets, which is the majority of brand names stolen by US companies and used to sell products to asians living in USA.

Not the first.

[krischik]

Switzerland explicitly allows DRM breaking since 2007.

Re:All cracking legal?

[IamTheRealMike]

Well, the whole reason DRM exists is because the legal system doesn't scale to the number of law violators that exist. If copyright violation could be prosecuted quickly and efficiently enough to target everyone who did it, you wouldn't need DRM. You could just rely on the law as is. However there are too many violators and the law is too slow and heavy to do that, so you get DRM, and then it kind of makes sense to make breaking DRM illegal because not many people do that, so the law scales to it.

Of course, this does lead to contradictions with other parts of the law, eg fair use and expiration of copyrights. Some DRM schemes do attempt to address these. For example the design of BluRay DRM allows for copyright expiry as the title keys can be (are?) placed in eskrow to be released on the due date. Of course this doesn't actually have any impact because most keys leak long before that. AACS also has this concept of "managed copy" which attempts to address some parts of fair use, but fair use is deliberately vaguely defined so some people will never be happy with whatever compromise is worked out.

The real solution would be a lightweight and efficient legal process for punishing copyright violators. The various attempts to introduce 3-strikes laws are an example of that. Unfortunately these have been running around too, as lots of people are happy with the status quo where they can break the law daily without any real risk of punishment so there's no incentive to support such changes, although in the long run they could result in less or even no DRM being applied.

Re:In Soviet Brazil

[C0vardeAn0nim0]

one: official here don't usually leave office, with rare exceptions (like former president FHC). they just run to another office. it's not considered shamefull here to run again even after leaving presidency. of all the still living ex-presidents, only FHC didn't run for some other thing. sarney and collor are senators, itamar franco was governor of minas gerais untill 2003, and is running this year for senate. so offers of jobs have little value here.

two: we have a multi-party polical system, not a bi-partisan system. so, there's lots of interest from smaller and opposition parties to simply block proposals of rulling parties, specially in controversial stuff.

three: different than US, that only have right wing and FAR right wing parties (yes, the american democtratic partic _IS_ right wing), we actually have leftist parties. this includes real socialist, workers and communist parties. and DMCA style laws are anathema to their party lines.

four: populism and anti-americanism. both traits are very strong in basilian politics, which combined with 2 and 3 makes it very hard for foreign companies to simply bribe the government. unless you're a car manufacturer, like GM or volkswagen. but even in this case they have to _beg_ the government to get what they want. only civil construction contractors, banks, farmers and alcohol (AKA ethanol) producers have free pass to bribe the government here, but those are all local folks.

Re:is a / has a test

[cgpirre]

I assume wait() is in milliseconds, like most timers. So, 18 years.

Wrong about US' DMCA

[Sloppy]

Doctorow says

in the US, the Digital Millennium Copyright Act prohibits all circumvention of software locks, even when they don't protect copyright

but DMCA [cornell.edu], in 1201(a)(1)(A), the part that prohibits playing DRMed works, says:

No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

"This title" is Title 17; the title that creates copyright protection. If there's a public domain work that has DRM, you are allowed to defeat the DRM. You don't need to use any of the exemption clauses that come later, use any of the rules created by the librarian of congress, etc. DMCA never applies to you in the first case.

1201(b)(1), the part that prohibits creating and transacting in tools that play DRMed works, says:

(1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that—

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

Same as above. If there are public domain DRMed works out there, you are allowed to create software that plays them and sell a billion copies of it openly. (There might be some fighting over (B) there, but .. well, we can talk about that in another thread.)

DMCA very explicitly only applies to copyrighted works and the rights of the holders of those works. And AFAIK there hasn't been any case law that contradicts the plain reading of these parts. If you know of any, give references.

Furthermore, Doctorow says

for example, it would be illegal to for me to break the DRM on a Kindle to access my own novels, were they sold with Kindle DRM

but DMCA 12(A)(3) says

As used in this subsection—
(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner

If you are the copyright holder, just grant authorization. You (not Amazon!!!!) are the authority that the law is speaking about. You can grant it to yourself, or anyone else and under any conditions. This part of the law is utterly critical to the industries that bought this law and they can never safely repeal it without screwing themselves. If copyright holders couldn't grant permission, then there would be zero legal DVD or Blu-Ray players. Every single unit, even ones licensed by DVDCCA or whatever the Blu-Ray equivalent is, would be violations. It's implicit and hidden, but there's some legal mechanism where the movie makers grant authorization to the public to use these devices, and grant authorization to the electronics manufacturers to make them.

RTFL, Doctorow. Oh, and if you want to fuck around with DMCA, then start thinking about what document(s) you may have signed which authorize Kindle users to read you

Re:In Soviet Brazil

[stein.dagostini]

WRONG! We do not raze rainforest for that. Because rainforest soil is HORRIBLE for agriculture. Brasil has HUGE plains much more suited to sugar cane production. Most of legal rainforest razing is to create cattle and most of the ilegal one is for high grade wood that is sold to US and Europe black markets to poduce nice expensive furniture. Learn a bit before spelling crap here. Brasil uses ethanol as a MAINSTREAM fuel for like 30 years already. And Brasil has MORE preserved natural vegetation than US or ANY country in europe. Rainforest soil is extremely thin and not appropriated for agriculture. Brasil has a low production of wheat because here is too hot and humid for that. But we produce soy and other foods in very very large scale, IN fact Brasil is only surpassed by US in grain production.

Re:In Soviet Brazil

[littlerubberfeet]

Actually not...I do stuff with intellectual property for a living, including replication management and licensing for music and film.

DVDs in retail packaging (cased, 4/0 cover, 4 color disc face, shrinked, top spine label, etc.) can cost well below 50 cents when produced in very large quantities. The last batch I had made came in at about $1.05 a disc, and was a short run for a small publisher.

As for old films: The publisher/studio is contractually bound to pay residuals/reuse on DVDs for the entire life of the copyright. SAG/DGA/WGA want their (pitifully small) cut. For the soundtrack, the AFM wants their cut. IATSE also gets a cut, which helps fund pension and health plans. This list goes on.

The point is, a certain amount of money does, in fact, flow to the original artists.