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CSS of DVDs Ruled 'Ineffective' by Finnish Courts
An anonymous reader writes "The CSS protection used in DVDs has been ruled "ineffective" by Helsinki District Court. This means that CSS is not covered by the Finnish copyright law amendment of 2005 (based on EU Copyright Directive from 2001), allowing it to be freely circumvented. Quoting the press release: ' The conclusions of the court can be applied all over Europe since the word effective comes directly from the directive ... A protection measure is no longer effective, when there is widely available end-user software implementing a circumvention method. My understanding is that this is not technology-dependent. The decision can therefore be applied to Blu-Ray and HD-DVD as well in the future.'"
What this would seem to say to me is that in order to get to the point at which the protection measure is considered to be ineffective, you have to go through a point at which it is not widely available, and you're breaking the law.
Does that seem a bit wrong to anyone else?
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
It's an interesting concept though - if you can crack the system, and the cracks are easily obtainable in enduser products, then it is - for the purposes of the courts - not really encrypted. I like that thinking.
Is it just my observation, or are there way too many stupid people in the world?
I congratulate our enlightened European friends on their new found freedom.
Coding is not a crime.
...and there was much rejoicing!
Correct me if i'm wrong, but afaik the meaning of directive is that each member-country has to make their own law, based on these directives. So they must make their own interpretations if the directive, and therefore court rulings cannot make a direct precedence across borders.
What?
Freedom Pastry!
You've crossed the line now, Denmark.
- The Corporate States of America
Eat your Freedom Fries, lads! These Finns need Liberatin'!"
fap
Duh, what do cascading style sheets have to do with DVDs? They must have embedded web content. That must be it.
Stop! I'm kidding. Put the flamethrowers away!
u-bend
If the enforcement technology is ineffective, does that make violating the copyright OK? Weak analogy: A stop sign in an intersection is easily circumvented, does that mean it's OK for me to blow right by them? No, I'm not on the side of the mafiaa - just not sure I agree with the logic here. I'd rather see some discussion of the copyright laws themselves rather than CSS technology to "enforce" them. My 2 cents.
...do we have to bri^H^H^Hlobby to get some key sections from this "European Copyright Directive" tacked onto the end of the DMCA?
And how did the Europeans get all the good lawmakers anyway? I'm thinking about moving to Finland where copyright seems to make more sense.
The creator of this post (Jacob Smith) hereby releases it, and all of his other posts, into the public domain.
It doesn't recognize the right to access information we possess. Is it too much to ask for the courts to recognize this fundamental right? I'm glad CSS is ruled ineffectual, but what about BR and HD-DVD? When can we openly discuss the idea that erecting artificial barriers to entry is not something 21st century "enlightened" countries should engage in?
-Cyrus
http://www.bytesfree.org/
I do too. I wonder if we will ever see that in the good old US of Corporations... Damn there i go again being forward thinking like our , dvd decrypting european overlords, and I for one welcome them.
This package Does Not Contain a Winner
...but just a note on law. Even though EU passes directives, each country must pass their own laws in parliament. The EU does not make "federal law" like in the US. They may also apply different exceptions and such. So the law is not the same and even if it were, precedents do not legally apply. However, this goes straight to the core of the directive so if other countries read "effective" the same way... The precedent sounds rather strange to me though, it's like saying "if enough people are breaking the law, the law doesn't apply". Somehow I think they meant "to the effect of" meaning "however they do it, as long as it protects a copyrighted work". Not that it matters since the actual law is probably in Finnish anyway.
Live today, because you never know what tomorrow brings
Hey, Finnish / Danish, Taiwan / Thailand, Iraq / Iran, - it's all the same the us over here in Alabama.
If I get this right, it is illegal to circumvent effective copyright protection.
but
since a Norwegian hacker succeeded in circumventing CSS protection used in DVDs in 1999, end-users have been able to get with ease tens of similar circumventing software from the Internet even free of charge. Some operating systems come with this kind of software pre-installed. Thus, the court concluded that CSS protection can no longer be held effective as defined in law.
So everybody can circumvent CSS NOW, but back in 99, when it was difficult, it was still illegal...
I guess the logical step is for hackers/crackers when the find a means of circumventing X, that they widely distribute it and aide in creating user friendly progs to do so. Since at that point the protection method becomes ineffective and so it is legal !
Sounds like a plan to me !
suck on that, mr. MPAA!
There is a problem with this ruling, as it only takes local law into account, and not the directive. According to the EU "solidarity principle", the interpretation of local laws made because of EU directives should be in line with the directive.
And the InfoSoc directive actually defines "effective technological measures" in article 6.3.
The definition is contrary to common sense. Basically the directive defines "effective technological measures" as "technological measures" used by copyright holders:
You can only get such perverted definitions if you let the copyright holders write the law! I'm glad that Finland will not take part in such a perversion.
the only reason it's "illegal" is that there is nobody around for the weasels to get license money from with FOSS software. no license, no magic number.
well, the free market is saying they are a bunch of bonehead morons for taking that stance, we'll gin up a magic number with Special Midnight Magic, and screw you.
moral: a weasel without a secret is no threat. make their secret public, and the weasel is just another annoying little pesky bug on the wind. allow access, or folks will find it anyway.
smart judge.
if this is supposed to be a new economy, how come they still want my old fashioned money?
if enough people break, consciously, a law, then one may assume the law was wrong in the first place and so it can't - or shouldn't be applied. After all laws should reflect the public interest, and it seems clear to me that the public is interested in being allowed to copy media. I wonder, how many people living in a resonable modern society which provides access to copying devices - Xerox machines, CD or DVD rewriters, computers, VHS recorders, you name it - has NEVER infringed copyright at some point? I bet very few, if any at all.
Where is that guy who'd die defending what I had to say when I need him?
Wish I had some mod points. That's the funniest goatse post I've seen since it became tired (which was about 5 minutes after it was first posted).
SJW: Someone who has run out of real oppression, and has to fake it.
CSS is Finnished then.
CSS of websites Ruled 'Ineffective & defective' by the rest of teh world
CSS is weak, but it has served to prevent the masses from being able to easily and legally copy DVDs. Because of it's weakness, it has been easy for many hardware vendors to produce DVD players. As people have said DVDs "just work". But you are seeing more problems when more complex DRM is used. You have things that consumers think are supposed to work well together not working well together (such as a lot of earlier HD stuff). By ruling that CSS is not effective enough, this will force the MPAA, etc. into using much harsher DRM (although they seem to be heading that way, it will now actually be more justified).
I'm not a big fan of DRM, but I don't think it will be going away completely any time soon, and I'd rather just have weak DRM that is an annoyance that can be fairly easily gotten around rather than draconian restrictions that will make things stop working.
Give me Classic Slashdot or give me death!
Now don't get me wrong, I hate DRM in all forms, but isn't this just like saying if I lock my door with a lock that is easily pickable, then it's ok for someone to break in?
I believe one of the major reasons DRM was invented is to redefine and enforce the fair use rights as the studios see them.
I have the feeling that you might view those rights differently and now so will the courts for css protected content. For
instance, you might now view a legally obtained css protected dvd on a linux box *shudder*.
So why don't they just have a government program where the entire country buys one DVD of every movie and post a bittorrent for it?
try { do() || do_not(); } catch (JediException err) { yoda(err); }
Since Blu-ray and HD-DVD discs use a different copy protection method, AACS, I don't see how this ruling applies to them as well. The ruling explicit says CSS in ineffective, so I'm not sure why the defendant's counsel concludes the ruling is not 'technology-dependent' and applies to Blu-ray and HD-DVD as well.
Unlikely.
The common interpretation here as to what 'effective' means is that it is in fact an access control as opposed to some sort of thing that is not really an access control but which is put forward as such. To use an analogy, if you put the worst lock in the world on a gate (think of a combination lock where the combination is 3), it is effective; if you put a piece of paper on the gate that merely had the word 'lock' on it, trusting to people to respect it as if it were a lock, that would not be. Or say, if the lock was made to be permanently open, then it wouldn't be effective.
For example, in the Streambox case, there was a one bit flag to indicate whether access was allowed. This was found to be an effective control.
Still, you're welcome to try your luck. I for one would like to see the outcome.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
For example, in the Streambox case, there was a one bit flag to indicate whether access was allowed. This was found to be an effective control.
Isn't there a copy protect flag on CDDA tracks? By that precedent, it would constitute an effective access control, and so CD rippers are illegal.
Give me Classic Slashdot or give me death!
Does anyone use it?
Also n.b. that there are distinct offenses for circumventing an access control and circumventing a copy control; they aren't the same. An access control would not let you listen to the CD at all but would let you copy it, if that's possible. (CSS is an access control that doesn't prohibit copying; you can copy the encrypted data from the DVD without circumventing CSS) A copy control would let you listen to the CD but not copy it.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Actually, I should clarify this: the offense is trafficking in copy control circumvention devices. Actually circumventing it would simply be copying, and thus regular old copyright infringement (to which fair use is a defense). So ripping a CD with a no copy flag would not be any different from ripping any other CD; the presence of the flag doesn't make it worse. But if someone is making a tool that circumvents the no copy flag, then that is something for which you could get in trouble.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
number on the internet. Since it would be then easy to steal his identity, it would be ok!
21st century enlightened? Hahaha. Nothing has changed since the days of Columbus. We're the just^Wrighteou^Wenlightened ones!
Western countries are unenlightened on so many levels, but still look down on others.
"Fair use" is not a defense to copyright infringement. If you have a fair use action, then you're not guilty of copyright infringement. The fact that you may be sued for copyright infringement when your action is indeed covered by fair use does not change anything--I can sue you right now for copyright infringement without you ever encountering anything I own the copyright to. Fair use is a *possible* defense to *alleged* copyright infringement *iff* (not a typo) it meets specific criteria, frequently embodied into a four-prong test. Format-shifting with digital content does not currently fall into "fair use" categorically, for example. "Personal backup copies" are fair use only insofar as they are used for *archival* storage as long as the original remains functional. Moreover, "fair use" does not cover anywhere near the scope of acts that people on Slashdot seem to believe (even the Wikipedia article is misleadingly optimistic).
Fair use is a defense to a prima facie case of copyright infringement. Also it is convenient to speak of fair use as a defense to infringement, since generally people understand what is meant.
As for what is a fair use and what isn't, anything can be a fair use, and anything can not be a fair use. It's entirely case by case, without any kind of use automatically fair or automatically unfair. In RIAA v. Diamond, IIRC, the district court found that it could be fair use to space shift, which consisted of a person ripping a CD into an MP3 which they could then use on an MP3 player without having to use the CD. Thus it also included a format shift. Meanwhile I've never heard of any court case that said that where it was fair to make a backup, that backup couldn't be used instead of the original so long as the original was viable.
While I agree that many people misunderstand fair use, I think that you should start with your own misunderstandings.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Since when has copyright law applied to property?
I can easily see this argument as a pretty strong argument in U.S. courts. Not even good lawyers can predict what U.S. courts will do in situations like this, but I'd expect judges to listen to that argument with a lot of sympathy. It makes a lot of sense: "if everyone knows how to break it, it ain't effective". IANAL, and what happens in Finland does NOT automatically get accepted in the U.S. But what Finland did is exactly what U.S. courts often have to do: when there's a term in the law that is unclear, they end up having to try to figure out what it means, and then write down a definition to clarify it for others. This isn't a bad definition of when something is NOT effective.
- David A. Wheeler (see my Secure Programming HOWTO)
No. DRM says that when you leave your house, someone ELSE controls the key and locks your door, and decides under what conditions you're allowed to have your key back to enter your own house. This ruling just says that if the key to your house is widely available on the Internet, you're allowed to use that widely-available key to enter your own house.
- David A. Wheeler (see my Secure Programming HOWTO)
...do we have to bri^H^H^Hlobby to get some key sections from this "European Copyright Directive" tacked onto the end of the DMCA?
And how did the Europeans get all the good lawmakers anyway? I'm thinking about moving to Finland where copyright seems to make more sense.
WARNING! This girl exceeds the MAXIMUM SAFE standards established by the FDA for BRATTINESS
You misunderstand. "Fair use" is an exception to copyright protection. It is not a means of defense against copyright infringement, which would necessarily involve the commission of copyright infringement--fair use is *noninfringing* use and therefore the two are mutually exclusive. If your act is fair use, it is not copyright infringement. People don't "generally understand what is meant" if you go by what people throw around on Slashdot. Fair use is not an excuse for committing an unlawful act. It is an exemption from the applicability of the act--it is a *possible* defense to *alleged* copyright infringement in a *limited* and *variable* number of circumstances.
There is no such thing as a prima facie defense to copyright infringement because there is no fixed definition of fair use, which you yourself point out in your own post. I also specified that format shifting is not CATEGORICALLY fair use. That does not preclude the determination of certain kinds of transfers to be covered by fair use.
Or, translated from not Finnish, but Finnish Legalese to English, with my emphases:
The really worrying part is the telic definition: if the copyright holder INTENDS it to protect his copyright, then it's effective; and if it protects against anything AGAINST THE WILL of the copyright holder, then it's an "effective countermeasure". So, it doesn't have to be good, the copyright holder just has to wish it, and it doesn't have to protect against illegal copying, but ANYTHING the copyright holder doesn't want. However, the Finnish lawmakers made it milder by a contradictory addition (not the only one, see below the "right to watch even by countermeasure circumvention") that it must actually accomplish protection. The Helsinki District Court applies this: the effective protection must be accomplished. CSS isn't effective; it isn't even really copy-protection, it's DVD zone enforcement.
Nevertheless, this isn't a Finland-wide precedent, even less a EU-wide precedent. If this ruling was made by the Supreme Court or the Supreme Administrative Court of Finland, it could be used as an argument by a District or Appeals court, but the ruling of a District Court, as is, doesn't have any specific legal force outside that specific case. In fact, the Common Law concept of legal precedent is NOT APPLIED in countries which have Roman Law. This includes the EU, except for the UK.
Nevertheless, when reading thru the (Karpela's 2005 changes to the) copyright and criminal law, you can't help to notice the focus on commercial distribution of anti-copying measures. It appears that the intent was to extend the old prohibition of stealing cable TV with an analog descrambler to digital descrambling. Also, the law gives the user the right to circumvent copy-protection in order to listen or watch the copy-protected work, but not to copy it. So, effectively, you can't circumvent copy-protection, except if there's no other way. Lex Karpela is a contradictory, outright strange piece of legistlation.
Here is the definition: The problem is that using DeCSS on a DVD is not going to be considered to be "in the ordinary course of its [the DVD's] operation".
The real "Libtards" are the Libertarians!
"Fair use" is an exception to copyright protection. It is not a means of defense against copyright infringement, which would necessarily involve the commission of copyright infringement--fair use is *noninfringing* use and therefore the two are mutually exclusive.
Fair use is structured as a defense. The plaintiff can ignore fair use unless and until it is invoked by the defendant. Further, the burden is on the defendant to successfully argue fair use. This is appropriate, as he is the one who is claiming that there was a fair use and is probably in the best position to show why.
Fair use is not an excuse for committing an unlawful act.
Not all defenses involve excuses.
There is no such thing as a prima facie defense to copyright infringement
There is, I suppose, but what I said was that fair use is a defense to a prima facie case of infringement. That is, once the plaintiff has satisfied his initial burden of proving infringement, the ball moves to the defendant's court in order to prove fair use. He doesn't need to do so until the plaintiff can make a prima facie case, as without that, there's nothing anyway.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The problem is that using DeCSS on a DVD is not going to be considered to be "in the ordinary course of its [the DVD's] operation".
IMHO (IANAL):
It might be if DeCSS software becomes widely enough used.
It might also be in the case of platforms that can ONLY play DVDs by using a player based on DeCSS because the "legitimate licensees" have not seen fit to make anything "legit" available, or if the DeCSS based software becomes more common than the "legit" products.
Oh, this COULD get interesting.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
The other poster is the one who asserted that. I said that I had never heard of any courts which actually said such a thing. However, making any unauthorized copies of copyrighted works (with certain exceptions) is prima facie infringing, so if it isn't fair use or within one of those narrow exceptions, it'd be illegal anyway. And as I said, fair use is determined on a case by case basis. Just because it's fair for Alice to make backup copies doesn't mean it's fair for Bob to.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The ruling was made by the lowest level of court in Finland and the prosecutor still hasn't decided if he/she will appeal, so the ruling is not yet legally valid.
In your analogy, the people have no inherent right to be on your property. Where as the DVD media are actually sold to people.
Of course. Anything that *snort* MAFIAA wants, you obviously don't want. It's either us or them. What's good for them is bad for us.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
Having his information should not be any type of offense.
Using his information should be, and is, illegal.
Note the subtle distinction.
NO!
Tech Public Policy stuff
Does this mean that since product keys are widely available on the internet for licensed products, like MS office, XP, etc.. that product key use-protection is ineffective, and therefore it's ok for me to use them as much as i want?
If you had a legally obtained copy then yes you can do what you want. If you got a illegal copy then it is still illegal
How about buying a widely-available automatic pick gun to break into someone's house? It's not trespassing then, right?
Using the pick gun is not illegal. Going into the house is.
All this ruling does is allows you to break the access control. It does not give you the right to COPY materials.
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Kindle Books http://www.catprog.org/rev
Interactive CYOA http://www.catprog.org/st
Playing devil's advocate, it's harder to enforce copyright law without the DMCA. Espcecially with residential burning-dvds-for-a-friend situations, nobody's going to catch these guys and prosecute them. What is desirable to the mafiaa is a way to keep products that make that possible off store shelves (Have you ever seen a DVD ripper at Best Buy?)
I'm not saying I agree with the decision of trading fair use for ease-of-enforcement (so I'm still not really answering your question), but I'm willing to wager that's why the DMCA was pushed for.
Any tactic to counter an alleged tort is structured as a defensive move. That does not mean that the tactic is a defense to the tort itself (or the crime, for that matter)--it is a defense against the *allegation* of such a crime. That is my whole point.
The shorthand used to describe what's happening misleads people to believe that "fair use" is a defense they can invoke to protect themselves from unlawful acts they've committed. There is no such thing. Fair use is not a "yes, I did infringe on your copyright, but it's allowed"--it's "no, I did not infringe on your copyright because I hold fair use exemptions." It's the descriptor as a defense which goes on to mislead people in the general public. This seems highly semantic to the casual observer, but it is a critical distinction in the course of case law.
Fair use is something guiding your actions from the beginning, covering a deliberate act. It is not something you scramble to find after the fact when you get busted for downloading a decrypted copy of a film. It is not a defense against infringement; it is an exception to applicability.
The issue here wasn't the circumvention of DRM. The Finnish DMCA, passed in 2005, makes it illegal to hold an open discussion on bypassing DRM, which is ludicrous in a society that claims to value free speech. A couple of brave activists risked themselves to test the new law by holding an IRC discussion about bypassing DRM and reporting themselves to the police with evidence (IRC logs) afterwards. The objective was to get the judical branch to overturn the law because it violates the right to free speech. Unfortunately, instead of tackling the free speech issue once and for all, they ruled that the DRM scheme they discussed wasn't covered by the law. End result: discussing the bypassing of DRM (except for CSS which isn't now covered) is still illegal, and the law violating the right to free speech still exists.
When he buys stuff over the internet/mail order he gives out his CC details. This is used to take money from his account. However, this is not stealing, since they have a contract that allows them to take a certain ammount out of his account. If they take out more, then this becomes illegal.
In much the same way, the DVD hack is available and I haev a license to access the DVD to view. If I use the hack to view the DVD, this is legal. If I use the hack to decrypt and seed the world with free copies, that is illegal.
This does seem to be a bit of a problem with some hard-of-thinking people out there...
What if I purchased a robot that would go into the house instead of me, which would automatedly do tasks within the said house?
Firstly EU doesn't have federal law, and each and every country has its own laws based on these things.
Secondly precedence of previous judgements isn't as important thing as it is in USA.
And finally its isn't even Finnish Supreme court, in Finnish three level court system this happened in lowest level court. Don't make it what it isn't. What this means that it is unlikely no-one will be put to trial after this for breaking CSS, in Finland, since those interest groups they will probably loose with current wording of the law.
Now the obligatory IANAL, but a native Finnish citizen.
©God
Actually, the definition is no better than the "effective" language
"in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work"
Now, this is really being picky, but the letter of the law requires that the technological measure be applied with the authority of the copyright owner. That could mean that a techological measure is not necessarily applicable when the copyright owner is not actively approving or denying use - i.e.: through a call-home interface. A contractual agreement between the encryption license holder and the consumer electronics manufacturer may not constitute actual copyright holder authorization of an access key to an end user which is not a party to the contract. Probably not the case, but a legitimate arguement.
Also, SCOTUS often looks to international rulings when reviewing case law to apply to their decisions. This is but a drop of fresh water in an ocean, but it is nice to see that a pro-consumer ruling does exist somewhere in the world.
I mostly agree with you that the chance of anything happening in the US is nearly zero. I still prefer to use the adjective nearly, instead of absolutly. Sort of like I have a nearly zero chance of winning the lottery and becoming independently wealthy. Using absolutely is just too depressing.
Is it just my observation, or are there way too many stupid people in the world?
The conclusions this refers to are the "effective" part. What you quote, therefore, says that since a law based nearly verbatim on the directive has been interpret in this way by a court inside an EU country, that the "it's not an effective measure" thing could be a viable legal strategy once AACS becomes as thoroughly broken as CSS.
That is to say, get your head out of your case law arse already.
The problem is that you cannot assert fair use unless there is a prima facie infringement. It really doesn't behave as an rebuttal to the prima facie case itself. In practice, it is indeed 'Yes there was what would have been an infringement except I did this thing which transforms that into something which is allowed.'
Fair use is something guiding your actions from the beginning, covering a deliberate act. It is not something you scramble to find after the fact when you get busted for downloading a decrypted copy of a film.
Ha! Trust me, plenty of people engaged in fair use have to scramble to find it. Mental state isn't a factor in fair use, so it isn't problematic.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
If there is prima facie infringement, it's not fair use. You're just not getting this.
And people do not have to scramble to find anything. If they're sued for copyright infringement and believe they are engaged in a fair use exemption, they will be able to explain to their attorney what they were doing and why it should be allowed. Any good attorney dealing with IP on a regular basis will know exactly how to structure the response to the complaint if that is a legitimate fair use venue. S/he will also know where the limits are generally defined in his or her jurisdiction. If you're trying to push the envelope beyond what's already established, then you're not arguing for 'fair use' at all. You're arguing that fair use should be extended to cover additional actions because they constitute a noninfringing use with no commercial damage as a result.
This rarely works.
If there is prima facie infringement, it's not fair use. You're just not getting this.
I think that the problem you are having is that you are likely reading the statute and forgetting that it is the courts who interpret it authoritatively. Agree or disagree with them, they are a legitimate part of the process, just like Congress, and you're stuck with them anyway.
In court, if a plaintiff wants to make a prima facie case for infringement, he must show that there is a valid copyright, that he can enforce that copyright, and that there was infringement (often called 'copying' even in cases not actually involving the reproduction right). A defendant can rebut that case by showing, e.g. that there wasn't a valid copyright. Only if the plaintiff can successfully make that prima facie case, will the defendant have the need to, and in fact the opportunity to, argue fair use. If the plaintiff cannot prove the prima facie elements, fair use never even enters the courtroom.
Yes, the statute says that fair use is not infringing. But the courts uniformly interpret this in such a way that there has to be at least an arguable infringement before fair use needs to be considered. Mainly, it is because it is easier to do it this way: if the plaintiff cannot prove that there was any infringement even if fair use was not considered, the case can be dispensed with right there! Courts reduce their workload by only considering arguments and counterarguments on an as-needed basis. Indeed, it's quite common to see courts completely ignore important issues in a case by finding a simpler way of dispensing with it. See e.g. the famous Newdow case (the 1st Amendment case about the Pledge of Allegiance) where the Supreme Court found that there was no standing, and thus didn't have to make any substantive decision whatsoever.
Fair use is simply not part of the plaintiff's case-in-chief. It's not even properly a rebuttal. It's a defense. It's the defendant's burden, and it comes in later, rather than sooner.
If they're sued for copyright infringement and believe they are engaged in a fair use exemption, they will be able to explain to their attorney what they were doing and why it should be allowed.
I think that you expect too much out of parties.
If you're trying to push the envelope beyond what's already established, then you're not arguing for 'fair use' at all. You're arguing that fair use should be extended to cover additional actions because they constitute a noninfringing use with no commercial damage as a result.
Any use can be a fair use. It has no boundaries, other than that it must have otherwise been infringing, because an otherwise non-infringing use needn't be fair at all. It's entirely case-by-case, and so there's no point in thinking of an envelope. Indeed, the whole reason why fair use is utterly nebulous is so that it can be extended as needed. Time shifting can be a fair use, but it was novel at the time, and it certainly only wins on the fourth factor.
As for what works and what doesn't, fair use is always tricky. Even if you think you're in well-established territory, e.g. news reporting or parody, maybe you're not, e.g. Harper & Row v. Nation, or Disney v. Air Pirates. And sometimes when you think that you're not, you are, e.g. Sony v. Universal, or Campbell v. Acuff-Rose.
The other exceptions to copyright are much firmer ground, but also a lot more limited.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
I think the problem you're having is in assuming that I don't deal with this every day.
If you present a case before a judge and it's a prima facie infringement case, then there's no traction for a fair use argument. A prima facie infringement case is just that--conclusively infringement based on the presentation. Perhaps you're forgetting that the copyright holder has to demonstrate the infringement. If there is clear potential for fair use exemption, it's going to cross through the judge's head. Fair use is not an affirmative defense that has to be argued in the style of self-defense or insanity, for instance.
"Any use can be fair use" is patently untrue. There are four criteria spelled out for fair use in 17 USC 107. What you mean to say is that the boundaries of fair use are vague, but that is true of nearly every statute on the books as offers no meaning to the discussion.
You're also misinterpreting the mechanics of a case argued under infringement. Filing a complaint alleging infringement does not establish infringement. It establishes copying. The decision to be made is whether that copying was infringing (copyright infringement) or non-infringing (fair use, in the context of this debate). The fact that it would otherwise be infringing if not for fair use does not establish prima facie infringement. It establishes that the two are in complementary distribution. You continue to extend your argument to points not made.
The issue is this: "fair use" is not a defense for copyright infringement. They are mutually exclusive rulings on the same act. If it is copyright infringement, it is not fair use and vice versa. A prima facie case of copyright infringement would preclude the application of fair use rights, because "fair use" is not an affirmative defense. A defense would involve the commission of an illegal act, which is negated by extenuating circumstances. If the act itself is not illegal, the rebuttal is not a defense of a crime because no crime has been committed.
"Insanity" and "self defense" are defenses for murder charges. They accept that a murder has been committed, but the legal consequences are mitigated by extenuating circumstances. Fair use is not such a case, because the mere act of copying is not itself an illegal act and is a prima facie case of nothing. I am substantially pro-IP, but there is a clear semantic distinction here that you're not communicating effectively, and as evidenced by your further replies, don't fully understand.
By keeping the same analogy, the CSS method is mathematically as effective as line painted on the ground is an effective barrier against trespasser.
And the problem with DCMA, is that the thing that is made illegal isn't the crime it self (trespassing in our analogy, or with CSS making copies that don't conform to the copyright law) but the fact of circumventing the protections however asinine it was in the first place (in our analogy : walking across the painted line, in case of CSS breaking an almost-rot13-grade protection) even if you don't infringe any other law at all (in our analogy : you have right to be there, because you actually were invited to the party - with CSS : you just want to put the movie from you LEGALLY purchased DVD on your own server, so you can watch it from there and leave the DVD where there's no risk of breaking it).
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
The EU directive in question doesn't apply to computer software (an earlier directive does with quite different content). So, in Finland for example, the part about technical measures that protect a work and the circumvention of them does not apply to computer software, it is even specifically said so in the law. The same applies to other countries in EU. Of course, some countries might have added computer software as well to be covered even if the EU directive doesn't (although technically it would have been wrong to do so).
Of course, what you suggest can be illegal anyway for various other reasons, one being that the earlier EU directive basically mandated any copying at all for computer software to be infringement the only exception being if you are in lawfull possession of a copy in which case meaning it can't be one created in an infringing way. In those cases you are allowed to make such copies needed to use the software. It has nothing to do with the CD-key issue though.
The quicktime-challenged can now see it on-line at the most standard video site on the web.
This was the closest thread I could find where DVD-buying VS on-line distribution wasn't too far off topic
You can't take the sky from me...
Thanks Scrameustache. The DVD is worth getting. The content is damning. With all this info regarding the FDA scandal on public record, you would wonder why nothing has been done about it.