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.

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