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Elcomsoft Case Will Proceed
An Anonymous Coward writes "Reuters, via the NY Times (free registration required) reports that Elcomsoft's final motions to dismiss were denied. Apparently code *is* protected speech, but... not protected from the DMCA. But most interesting to me was this part: 'The DMCA does not eliminate fair use or substantially impair the fair use rights of anyone,' the judge wrote in a 35-page opinion. 'The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.' The EFF has the whole scoop as usual." There's a Wired story about the decision, and the judge's order is available.
Gagging a person doesn't violate their free speech.
After all, they only have to struggle a little harder to express themselves
</sarcasm>
Where do they get these judges?
"It is a greater offense to steal men's labor, than their clothes"
Here's an analogy you may find interesting:
"The DMCA (Dealer Mechanic Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their vehicle (because it states that you can only seek repairs or purchase parts from the dealer where you purchased your car),' the judge wrote in a 35-page opinion. 'The fair user may find it more inconvenient to engage in certain fair uses with regard to their modern vehicles, but nevertheless, fair use is still available, for a price."
or...
"The BMCA (Book Maker Compensation Act) does not eliminate fair use or substantially impair the fair use rights of anyone to use their books (because it states that you can only open the cover of the book using a special decoder tool that must be registered and periodically renewed by the book publisher),' the judge wrote in a 35-page opinion. 'The fair user may find it more burdernsome to engage in certain fair uses with regard to their book collection, but nevertheless, fair use is still available, as long as the book publisher remains in business."
When as these idiot judges going to learn? Either we have a first sale doctrine...or we don't. Why do such backward-thinking judges somehow decide that just because we are selling very long numbers instead of books and cars that putting rules and restrictions on ANYTHING AS PART OF A SALE is effectively doing away with this longstanding legal precident?
The day will come when matter can be easily replicated and all book publishers and car makers are going to be able to see are blueprints, designs, and other electronic information. All these companies are doing is ensuring that people turn to back alley and underground channels. But I understand their Chicken Little approach to intellectual property and the back-ass-wards way they follow it.
What I don't understand is judges...who are put in our system of government to provide a check and balance to stupid laws...basically deciding that a small risk to corporate profits outweighs a society-wide consequence to freedom of access to information. WHO IS PAYING THESE PEOPLE OFF?
- JoeShmoe
.
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
Hey. Just a couple of days I donated $20 to the EFF (grad student budget constraints).
:CueCats, all donated $20 to the EFF, or other organizations, suddenly we might be able to buy some justice as well.
I'll tell you something, laws can be bought ("donations" to lesiglators), and court cases can be bought (better lawyers cost more). It seems like big business, etc., always win these things, but the reason is because they have the money to do the buying.
If us, the regular people, those who want to own what we pay for, who want the right to watch our DVDs with the player we choose, to save our e-books on to a different medium, to uninstall parts of the operating system that we don't want, to take apart our
So forego a couple of extra beers, a couple of rounds of pool, StarWars tickets, etc. and dontate a couple of bucks. Maybe then we can see a difference.
Just an idea.
This is a silly argument. If the process is reversable you have not fundamentally altered it, merely packaged it. Warez pirates don't get off scott free because they are trading ZIP files that just happen to uncompess to WinXP.
Now, if the process isn't reversable then you have destroyed the item in question so arguably there is no copyright violation in the first place.
It's not the individual steps that are the concern. It's the process. Your program B wouldn't be illegal unless the only purpose of program B was to be used in concert with number A to product free copies of Window XP.
A book is just a really long word printed on paper. A car is just a really complicated sculpture made from metal&plastic.
My point is that we need for people to separate CONTENT from DISTRIBUTION and stop thinking that objects containing both are somehow inseparable. A electronic book is the same as a book except the electronic book can be duplicated replicated and distributed far more easily than the physical book. But in the future where maybe we have robots that could flip through a book recording each page then manufacture a duplicate from raw materials...well then, suddenly its more apparant that the part of the "book" that actually has value is the word not the package and not the way it gets from point A to point B.
Even if computer code is just a really big number...it still takes a person focusing creative energy for a period of time to produce that number...or rather, find out why that number is so special (what exactly it does). But beyond the initial credit and compensation...it is flat out stupid to assign rights to the number itself. I won't purchase eBooks because they aren't going to sell me their number. They want to sell me part of it and then add a whole long list of chores I must complete to get the rest.
It's as if an artist sold you a picture in a black box and told you to hang the black box over your mantle and if you ever wanted to see the picture, call him and he'll remotely open the box. Who would be stupid enough to buy something like this? Yet if tomorrow all artists decided to do it, would we have any way to stop them? No, we wouldn't and that's when the courts are supposed to step in and say "No." They did it for book contracts back in the 1970's and established the first-sale doctrine as law.
And now idiots like this judge have decided to throw that out and go back to allowing manufactures of PACKAGING and DISTRIBUTION to made decisions regarding CONTENT.
- JoeShmoe
.
-- I wonder which will go down in history as the bigger failure: the War on Drugs or the War on Filesharing
If elcomsoft has a registered business entity in the USA, it can be attacked.
If they do not have such an entity, then it is thier distributor who has been importing and trafiking in illegal, DCMA violating software. The Distributor hosted it on its server, took money for it and comitted the crimes.
If the latter is the case, all Elcomsoft has to do is stay in Russia and no one can touch them.
This should be a serious lesson for all commercial entities that sell or want to sell software to US Persons:
Use external servers and payment services to sell your software
do not incorporate in the USA
do not allow your staff to travel to the USA, for any reason.
In this way, you can sell your software to Americans, and remain insulated from the American state.
This is the best analogy so far...
I can, for arguements sake, buy the book in print format to distribute according to Fair Use and:
A. Hand transcribe it.
B. Go to Kinko's and copy it page for page.
C. Buy an OCR scanner and again copy it page for page.
or
D. Use the Elcomsoft software and distribute it much the same as the above examples...
What is the difference? None. I'm merely using technology to enhance my performance.
As long as I am distributing according to Fair Use I haven't broken any laws... or have I? the DMCA would have it to be that I have, somehow.
Prosecute people for breaking a law, not for creating something that 'COULD' break the law.
What ever happened to 'innocent until proven guilty' or the 'right to bear arms' or 'freedom of speech' or any of our constitutional rights that specifically were created to keep citizens from being persecuted for the potential of committing crimes.
We are all potentially committing crimes just by being alive.
A fool throws a stone into a well and a thousand sages can not remove it.
The fact they were knowingly selling into the US? Why does the EU have the right to impose restrictions on Microsoft?
Not that I think this case is right, but if you actively sell something into a state (nation or otherwise), you have to accept anything relating to the sale to be governed by its rules.
What gives the US the authority to prosecute a foreign company under US law?
Simple. Beacuse behind our corporations (and even those who choose to encorporate in Bermuta to avoid taxes) is the force of the U.S. Military. And our military is bigger and more bad-ass than theirs.
The fair user may find it more difficult to engage in certain fair uses with regard to electronic books, but nevertheless, fair use is still available.
IANAL but that statement sounds to me like pretty explicit permission do defeat devices/"protections" that impede fair use BY ANY MEANS NECESSARY so long as you are excercising your fair use rights. Difficult is most definately NOT impossible. And since there is no banning in place, there is no legal impossiblity, and most certainly no technical one, and there never will be.
Now if I can just get an eBook converted to speech mp3 and drop it on the new Sony Net MD Player/Recorder. Heh.