EME Legal Aspects

As a copyright student I’m obviously interested in the legal aspects of implementing EME in W3C.

As I mentioned in the previous post DRM hardly ever works as a full proof method to protect copying of media. Hence media companies around the world have lobbied to make it illegal to circumvent DRM. The most (in)famous of them is the Section 1201–1203 of the American Digital Millennium Copyright Act (DMCA).

Though DMCA has exemptions for the circumvention for research and protection of personally identifiable information the provisions are so narrow that they don’t have any practical consequence.

Our Indian Copyright Act was also amended in 2012 to make circumvention of DRM illegal, our statue calls DRM as Technological Protection Measures(TPM). But there are important differences with DMCA. Our statue makes it illegal to circumvent TPM only when it is done with the intention of infringing a copyright. Section 65A(2) makes important and explicit exemptions to allow circumvention for the purpose of cryptographic research, protecting the privacy, ensuring the security of the system and doing anything allowed in our fair use provision.

An interesting and important question that now comes out is how does contradictory international legal provisions plays out when DRM is part of the Internet. The hegemony of US drastically reduces the practical utility of the exemptions provided in the Indian Law. Citizens are unlikely to get help from corporates because, first a lot of our internet tools and services comes from American corporates, second most of our local IT and software firms also do business in United States. For a DRM on Internet, it is very hard for someone to assist circumvention for someone in India at the same not to assist circumvention for someone in United States, and doing so invites prosecution in US.

Individuals and corporations working purely in India also face a threat of prosecution if they travel to US. In 2001 a Russian programmer Dmitry Sklyarov was arrested in United States when he came to present a talk at DEF CON in Las Vegas. Dmitry worked for a Russian company called ElcomSoft who created a software to convert Adobe’s DRMed ebooks to PDF. Whatever ElcomSoft did was perfectly legal in Russia and Dmitry did nothing illegal on American soil. Fortunately arrest created a public outcry and Dmitry was released (a few months) later.