Master End-User License Agreement

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Legally Watching a Stolen Movie

Posted by meula on February 2, 2007

Did you know that it is never copyright infringement to watch a stolen movie? Let’s assume someone broke into the video store and stole several DVDs. During the getaway, the thief drops a few. You find one, and you watch it. The thief gets home, and watches one. Infringement? No. Why? Because the copyrights are limited to those contained in Section 106 of the Copyright Act. To watch a copyrighted movie is to “perform” the work in copyright jargon, but the exclusive right with respect to performances only applies to public performances – the exclusive right to perform the work publicly. So long as you or the thief watch it in private, no copyright is infringed, though the thief may be prosecuted for stealing the DVD from the video store.

And what does this have to do with a MEULA? If the copyright owner purports to use a EULA (or DRM, TPM or any other automated means of enforcing its wishes) to prohibit you from performing the work privately, that term should be void and unenforceable because the copyright owner has no right to prohibit the private performance. Thus, when you download music or movies from one of those places that makes you pay a fee every month to be able to play the music or the movie you already own, you should be pretty upset — at least if the limitation is being imposed by the copyright owner.

Time for a MEULA term that prohibits any EULA from preventing the private performance of the work, and which authorizes anyone in possession of a lawfully made copy to circumvent any technological protection measure that would prevent the work from being performed privately.

Exceptions? Sure. An exception for “try before you buy” types of arrangements. Those should survive scrutiny because they are intended to let the prospective purchaser of a download to test out the software, and that may be the only practical way of persuading the consumer to part with hard cash. But when a consumer downloads a song for a fee, and then has to pay again the next month to keep on listening, the copyright owner has stepped way out of bounds.


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