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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance of...

July 27, 2004
Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?Email This EntryPrint This Entry
Posted by Ernest Miller

An interesting point was raised in the comments section of my posting on Real's software that converts music files with Real's Helix DRM to Apple's FairPlay DRM (What Real's Hacking of FairPlay Doesn't Do). Carl Witty and Derek Slater discuss the question of whether converting from Real's Helix DRM to Apple's FairPlay DRM might be construed as a violation of the anti-circumvention provisions of the DMCA (17 USC 1201). Derek claims that Real probably has the right to do such conversions under its licensing of Helix.

This is a question I've thought a lot about and the answer would have interesting repercussions (Who Can Sue Who Under the DMCA?). I agree with Slater. The licensing for Helix has to trump any claimed injury by copyright holders who use Helix DRM. Otherwise, the DRM is no longer controlled by Real, but by the copyright holders. Who would license DRM knowing that copyright holders would not be bound by the terms of the license?

However, Seth Finkelstein disagrees (and so does the Second Circuit). In the MPAA DeCSS cases, the movie studios were permitted to bring the action despite the fact that they had zero rights in CSS according to the licenses they signed with the DVDCCA, which manages the rights to CSS. The DMCA gives a very broad right to sue: "[a]ny person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States court for such violation." If converting from Helix DRM to FairPlay DRM harms the copyright holder (because FairPlay has been cracked, for example), shouldn't they be able to sue Real under terms of the DMCA?

It's a question I would love to see the courts deal with.


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TrackBack URL: http://www.corante.com/cgi-bin/mt/mt-pcorso.cgi/3801
Real's Harmony Hype from A Copyfighter's Musings Ernest covers the most important points [Read More]

Tracked on July 28, 2004 02:50 AM

Can Real Sue Apple Under the DMCA? from The Importance of... Derek Slater has some further thoughts on Real's announcement that they will be able to convert their Helix DRM files into Apple's FairPlay DRM format, but not the other way around (Real's Harmony Hype). Reading his article made me consider... [Read More]

Tracked on July 28, 2004 05:15 PM

Apple Threatens Real from A Copyfighter's Musings Apple has released a statement in response to Harmony : "We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod(R), and we are investigating the implications of their actions under the DMCA and other laws. [Read More]

Tracked on July 29, 2004 05:50 PM

Apple Gets Real Serious About Harmony from The Importance of... I've been writing a lot recently about the Real / Apple imbroglio (What Real's Hacking of FairPlay Doesn't Do, Can Copyright Holders Sue Real for Converting Files from Helix DRM to FairPlay DRM?, and Can Real Sue Apple Under the... [Read More]

Tracked on July 29, 2004 06:50 PM





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