User:Crosbie Fitch

Schrödinger's Copyright
Schrödinger's Copyright is a term coined to describe the dilemma faced by one copyright holder in circumventing the TPM of another copyright holder in order to determine whether or not their copyright is infringed. This dilemma is given jeopardy by the DMCA.

This applies in the case where the original copyright holder suspects that an encrypted file may contain a work that infringes their copyright.

The original copyright owner can only determine whether the potentially infringing work actually infringes their copyright after they have circumvented its encryption based TPM.

Either:
 * 1) It is infringing and post factum they have legal sanction to circumvent, OR
 * 2) It is not infringing and they may be imprisoned under the DMCA for 10 years, for possession and use of circumvention tools against a copyrighted work's TPM.

First use

 * From: Crosbie Fitch
 * Sent: 25 April 2006 15:39
 * To: Pho (pho@onehouse.com)
 * Subject: Schrödinger's copyright

Here's another 'crazy copyright' conundrum for your consideration:

A derivative of a copyrighted work remains, nevertheless, a copyrighted work in its own right - with or without authorisation from the original copyright holder (at such time as they assert that the derivative is indeed a derivative).

Let's imagine that a concept artist called Bob would like to create a derivative, but rather than seek authorisation is happy to postpone publication a couple of centuries hence, so they encrypt their otherwise unauthorised derivative. This is their TPM which controls access to their work until such time as the derivative may be legitimately enjoyed.

In consideration that no TPM is perfect, the DMCA prohibits anyone attempting to circumvent that TPM in order to access the copyrighted work (albeit infringing were it to be decrypted). Indeed, one can immediately recognise that circumventing the TPM would violate the wishes of two artists in one fell swoop.

Ah, but, you say. If the original copyright owner suspects their work is being infringed, then they have legal sanction to circumvent the TPM in order to demonstrate infringement. Or do they?

If they do, then presumably any artist (just as much a copyright owner as any other) who considers an encrypted work infringes work of their own also has grounds to circumvent its TPM. The MPAA itself has even admitted that it has taken unauthorised copies of DVDs for 'legal purposes'.

This is presumably because it is impossible to demonstrate infringement without actually obtaining access to the infringing work?

So, let's say Bob rips a Star Wars DVD, but edits out all appearances of Jar Jar Binks. Bob encrypts the content, and file-shares it for posthumous recognition and future prosperity for his posterity, with a note that the private key to this important artwork will not be revealed until a couple of centuries later when the copyright of the underlying work expires.

If the only file that has been distributed is the encrypted file, can anyone be prosecuted for distributing a potentially infringing work unless the TPM is circumvented?

It is plainly not the intention of Bob to infringe copyright. File-sharers and archivists alike are also, plainly, simply doing their bit to preserve Bob's legacy for their own descendants' entertainment.

Without the benefit of hindsight to be obtained during 2206, has any infringement yet occurred?

Can it be proven with legally admissable evidence before 2206?

Does it make any difference if Bob indicates the nature of his encrypted work when he distributes it?

Does this give all copyright holders carte blanche to violate each others' encryption TPMs simply on grounds of suspicion of infringement?

Given the need to circumvent TPMs for legal purposes, to defend against infringement of one's copyrights, this presumably then sanctions the manufacture, sale, purchase and possession of tools to circumvent TPMs?

Let's say in 2016 someone uses such a circumvention tool to break Bob's encryption TPM, but nefariously publishes the private key. Are all the archivists of Bob's work, not least Bob himself, now copyright infringers?