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.

Comments

His Reasoning is Bogus

[geoffsmith]

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.

I'm sick of that argument. It's just not valid, if you make something "difficult" enough, people won't do it. And if people won't do it, it's equivalent to banning it. That it could be done "in theory" or by "people who are willing to put in extra effort" is irrelevant.

In fact, all laws work on a relative disincentive principle ... most people would rather avoid breaking the law than possibly landing in jail. In this case, most people would rather not exercise the full extent of their fair use than put in the effort to sidestep the DMCA. There is no difference, the DMCA "silencing effect" is an affront to free speech. I think the fact that a person intelligent enough to become a judge used this argument shows he has ulterior motives.

Websurfing done right! StumbleUpon

Fair Use vs one can hire monks to scribe

[Seth Finkelstein]

I think the definitive slogan should be

Fair use doesn't mean that one can hire monks to scribe

I take this from the EFF Supplemental Letter Brief in Corley v. Universal appeal

2. Can Congress Eliminate Fair Use in New Media?

At argument, the Court asked whether "fair use" meant a right to access the work in the technologically most usable form. The short answer is that fair use extends to works in whatever form they are offered to the public.

The longer answer is that, since fair use is the safety valve by which the First Amendment and copyright exist peacefully, if different media permit different levels of individual expression through fair use, then decisions by Congress to impede the most useful means require justification under the First Amendment. A prohibition on using copy machines to make fair use could not be answered - under today's First Amendment law - with the retort that one can hire monks to scribe the relevant passages.

Unfortunately, the courts so far seem to be holding the opposite :-(

Sig: What Happened To The Censorware Project (censorware.org)

Paper vs digital

[Alsee]

If you substitute 'book' for 'computer' and 'printed text' for 'computer data' it becomes pretty obvious just how stupid DMCA, SSSCA, CBDTPA, and all the DRM schemes are.

We're getting screwed because so many people find "computer bytes" to be myterious and magical. A byte is very much like a letter on a piece of paper. If it's legal to do something with a piece of paper, it should be legal on a computer.

-

because weare selling very long numbers...

[GrEp]

Along this line, every digital program is a number in base 2. If one were to write a program A that outputs the number for Windows XP, and then write a program B that outputs the number for A, would program B be legal?

Program B does nothing but output a number. The number it outputs is not copyrighted.

What if you wrote a program that produced the number for the Windows XP binary minus seven? Would a program that adds seven then be copyrighted by microsoft?

Similarly,does a software binary copyright also cover the infinite number of programs that output that binary? Also, does copyright cover stuff like program B giving control over the infinite number of programs, that can be produced by the infinite number of programs, that can be produced by an infinite number of programs....

If the government actualy accepts code as speach, then software companies are screwed. They would have to outlaw every number, because it could be used as a key to generate the source code for Windows XP.

Re:US Laws Apply to Non-US Companies?

[Anonymous Coward]

Or perhaps the question is: what gives Elcomsoft the right to sell products in the u.s. without ability to be prosecuted?

What is so hard about this, people?

[Greyfox]

We need to put this code is speech thing to bed once and for all.

Is code speech? I don't know. Can you copyright it? Apparently every company that has EVER written software thinks so. It's the very foundation of the software industry business model. The ability to copyright code is a basic assumption. Time and time again courts have found for the holder of the copyright in code theft cases. I think sufficient legal precident exists that says that code is speech.

Since code is speech, for the most part the DMCA should simply not apply. Most attempts to limit speech fail miserably; witness attempts to enforce COPA, video game age restrictions (in most juristictions,) and even virtual kiddie porn. If even kiddie porn is protected speech except under the narrowest of circumstances, source code should be a no brainer. The DMCA obviously is in conflict with the first ammendment. Had Elcomsoft simply copyrighted their source code and published as a book (A trick Zimmerman sucessfully used to get around the PGP restrictions in the USA) the question probably would never even have come up.

Furthermore, the assumption in the industry, again bourne up by legal precident, is that the source code copyright extends to binary executable files. If I put the Windows binaries up on a 31337 W4R3Z site, Microsoft will come after me for copyright violations, and they'd win. If I tried to argue that copyright did not apply to the executables, I'd get laughed out of court. This despite the fact that the opinion in Congress is currently that all code, source or binary, comprises a machine and has no speech component and may be arbitrarily restricted. If it is not speech, copyright must simply not apply. If copyright does not apply, the entire software industry is will bring lobbyists to bear faster than I can hit submit on this post.

obDisclamer: I am not a lawyer. But I watched most of the Ally McBeal episodes.

Re:struggling a little harder

[Rogerborg]

• Where do they get these judges?

For those who don't know, federal judges are political appointees. Of course, it's illegal for me and thee to employ people based on their political views, but political affiliation (aka loyalty) is the primary (de facto) criteria for the appointment of federal judges. Another nice example of "Do as we say, not as we do." from our political overclass.