An End-Run Around Your Rights

As part of the package of copyright law improvements published yesterday, the Open Rights Group is celebrating the publication of copyright exceptions finally legalising in the United Kingdom what we all do anyway with copyrights -- format...

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As part of the package of copyright law improvements published yesterday, the Open Rights Group is celebrating the publication of copyright exceptions finally legalising in the United Kingdom what we all do anyway with copyrights -- format shifting.

Copyright exceptions are all very well, but the rights maximalists saw the writing on the wall long ago and realised they weren't going to be able to keep fair use illegal forever. They carried on fighting against reasonable use by reasonable people, but they also shifted strategy to devise obstacles to the legal uses of copyright and to enshrine the protection of these devices in law.

We are winning the battle over copyright exceptions to make the obvious legal, but while we were fighting these legal rights were rendered moot by laws making it illegal to hack through thickets of digital restrictions to reach them. You may be entitled to use the coprighted content, but just like Neo in The Matrix, what is the point of having rights if it's illegal to exercise them?

Worse, contract law is being used to remove rights as well during the delivery process, over and above copyright law. It is embodied in a click-wrap agreement presented in the final moments of purchase. In the context of click-wrap the user has no bargaining power to get the contract's provisions altered. All the rights copyright exceptions deliver get surrendered at this point.

Fortunately the new regulations deal with that by making contract terms removing some of these new rights unenforceable. The media industry is relying on you being too afraid to rely on that for now. But expect new linguistic traps in click-throughs soon, probably linking the contract terms to the DRM.

So yes, let's celebrate finally being allowed under law what most people have assumed was legal anyway for the last decade. But remember that the media industry's giant army of lobbyists saw that coming and made sure you've already been forced to surrender those new rights, even before you got them.

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