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Suppose a web service offers users to store their media data, some of which may be copyrighted. The service would keep metadata separate from the content itself, and that content would be transparently encrypted and decrypted on the user's device, with the keys never leaving that device. Thus, the web service has no way of making any sense of the user's files, but can use the metadata to allow sorting, organising and searching for content.
Also, suppose the service might allow users to invite members of their immediate family (say, up to a maximum of five people). Those family members, in addition to the library owner, would be allowed to access the content.

Would that service be in violation of common copyright terms?
I would argue that since a) web service cannot access the protected media itself and share it with others, and b) users essentially use the service for backups, this should be fine; but I'm not sure how to approach this.

(I'm trying to gauge the viability of a side project)

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    Does this answer your question? Is Encrypted Intellectual Property still considered Intellectual Property? Jan 11, 2023 at 19:09
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    "I'm trying to gauge the viability of a side project". This site is not for specific legal advice. Jan 11, 2023 at 19:10
  • The linked question is related, but does not cover the actual issues in this question, and so is not a duplicate. Jan 11, 2023 at 20:14
  • This may be aimed at a particular practical use, but it only asks whet the law permits and does not permit, so it is not a request for specific legal advice, as policy on this site defines RSLA. It should not,be closed as a RSLA. Jan 11, 2023 at 20:15
  • Almost everything the store will be copyrighted - I own the copyright in this comment, for example.
    – Dale M
    Jan 11, 2023 at 21:24

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An encrypted copy of a derivative work is still a copy. A person is not entitled to make a copy of a work protected by copyright without permission simply because the copy is encrypted.

However, making a copy purely for purposes of backup might be considered to be a fair use. If the person (or entity) storing the copy does not have access to the clear text, then the copy cannot serve as a substitute for the original, and it is hard to see how the market for the original is harmed. That tilts any analysis towards fair use, but that is not a full analysis, and one cannot say form sure how a court would rule on such a claim.

That assume that the possessor of the copy came by it legitimately. If the copy was itself an infringement, making further copies is almost surely not a fair use.

One should remember that the person who makes an encrypted copy can alweays distribute the encryption key at a later time. S/he may have no intention of doing so, and may even have promised not to do so. But s/he can always do so, and that possibility means that the encrypted copies might later be decrypted by some other party. But as long as they are not being decrypted and the other party does not (yet) have the ability to decrypt, they are no economic threat to the copyright owner.

Thus one cannot say how a US court would rule on such activities, if the copyright owner brought suit for copyright infringement.

If suit was brought in a non-US court, fair use would not apply. Other exceptions to copyright might apply, but which would depend on the jurisdiction involved.

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  • The question as a I understood it was about whether the hosting service storing the copies is possibly violating copyright. Shouldn't DMCA come into this? For example, if I somehow learn that there is an encrypted copy of my intellectual property distributed without my permission somewhere (e.g. encrypted ZIP files on some pirate web site), then I believe I may issue a DMCA takedown request and the service operator needs to respond to that.
    – Brandin
    Jan 13, 2023 at 12:17

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