<I>Kaplan ends up ruling that CSS protects content -- but it really only ends up protecting playback</I>
Under the DMCA this doesn't change anything, you are not allowed to possess a device that permit to circumvent a security system allowing access to copyrigthed work, that is that, and the judge said t himself, even if we manage to prove that DeCSS is really about viewing and not copying this is still illegal.
This mean that you end up in a case where you still have the rigth of fair use, and under this right you can view and copy copygrigthed material for your own use but the industry can implement a system of copy or playback protection and, under the DMCA, ALL the methods to exerce your fair use act are illegal.
Therefore you end up with having a right that can be achieved only by breaking the law.
The only chance we have is to make people see it and mobilise the public opinion around the fact that they are killing the possibility of fair use, you will only have as much fair use as the industry are wiling to give you.
Th eworse thing is that if they manage to make it possible for fair use they may manage to make it to free speech, that is you will still have the right to free speech, but all the means to use this right are illegal, thus making itt illegal.
I think this is very stupid from the movie industry or any other industry because if the only way to exerce your right to fair use is by breaking the law then we don't have any reason not to break the law for gaining access to the material without paying.
Like the above poster pointed out, fair use still exists, but now for digital medai , the DMCA makes unlawful all the means to achieve it, so you now have a right that you can't achieve.
This should make any american citizen feel very concerned because if it holds up in court they could theoretically do it to Free Speech too, you would still have the right to free speech, but all the ways to exerce this right made illegal, therefore making it impossible to exerce free speech legally, while respecting the constitution.
I'm happy not to be American and to live in a free country.
UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default. Well, guess what. This is pretty close to the law as it now stands.
There is a major difference, before UCITA they can disclaim everything they want but this probably wouldn't be enforcable in court, so if somebody had the wit and the money to sue Microsoft for loss of money due to the many hours employees have lost because of BSOD's (although it would be hard to prove) or because the NT server crashed and the whole company was paralysed, there is a possibility that the judge will say that the disclaimer is to much broad and make it void, this forcing MS (in this case) to pay compensations to the company, with the UCITA shrink-wrap license will have more power, thus making it very unlikely to ever gain compensation against a company selling shoddy software.
so individuals will still be able to argue assumption of risk (which is a damn good argument for free software; after all, you get what you pay for)
Right, and this is what support companies are here for (and if the company bought support she may also could prosecute the support company).
Again, this is already the case. You can't use it if you don't have a license, and all they have to do now to keep you from reverse engineering is bury in the license "PURCHASER agrees not to reverse engineer the PRODUCT."
You are wrong here, they can make any clause they want that I can't use their software unless I agree not to reverse engineer it but if I need to I will do it anyway. Why? Because the law of my country (French law and European law) allow reverse engineering for compatibility reasons, and NO license clause can make me loose this right, otherwise they could add a clause telling "You agree to purchase the next version of this software" or "You agree to buy this other software in addition to this software", which is called product tying (I think it is the right English name) and is illegal, doing it in a license clause wouldn't make it legal.
That's also why they often add a comment after reverse engineering clauses saying that the reverse engineering clause may be inapplicable in your country. For example see the Microsoft EULA: (e) Limitations on Reverse Engineering, Decompilation and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(emphasis mine)
But what the EULA is doing is to say that such clauses are enforcable, therefore reverse engineering is NOT permitted.
Even if RE is permitted you are not protected from a lawsuit, this is what happens in the DeCSS case, where a German guy (therefore a resident of the European community) legally (because it is permitted in Europe) reverse-engineered the DVD scheme to ease the playing of DVD's on Linux. The fact that it is legal in this case didn't stop the DVD CCA to sue guys using this software legally obtained by reverse-engineering saying that he broke a NDA (which is probably invalid, since they tried to make a NDA on a mass market) and the MPAA to sue people arguing that it was not for compatibility's sake but rather for piracy (and deny that piracy was possible before, which would largelly destroy their case).
No state may pass a law which impairs the obligations of a contract which was lawful at the time it was entered into. UTICA cannot read provisions into license agreements which were entered into prior to UTICA's adoption: this would violate the sanctity of contract, which is something that American judges just won't accept.
I hope they won't, and that if this law is ever passed this will help to make it anti-constitutional, but that doens't change the fact that they are trying to do it, which is a bad thing in itself.
They could even prohibit you from describing what you see as flaws in the material. Unlikely. Such a term would be highly unlikely to stand as a in violation of public policy, that being free speech.
That still won't stop them from trying, isn't that Mr-the-new-CEO-of-Microsoft that, in an interview a few months ago, said about a question of why there was such a clause (benchmark forbidden) in MS EULA, something like: "I don't know if their is such a clause in Windows and everybody is doing the same in the industry"
The problem os that a lot of things that should be rejected by the courts, because to accept them would be stupid and clearly an injustice are being now accepted (well, at least in the US court).
Of course, disclaimer: IANAL (I'm not even American) but that is what I understand from my courses in computer laws.
Slashdot Mirror
<I>Kaplan ends up ruling that CSS protects content -- but it really only ends up protecting playback</I>
Under the DMCA this doesn't change anything, you are not allowed to possess a device that permit to circumvent a security system allowing access to copyrigthed work, that is that, and the judge said t himself, even if we manage to prove that DeCSS is really about viewing and not copying this is still illegal.
This mean that you end up in a case where you still have the rigth of fair use, and under this right you can view and copy copygrigthed material for your own use but the industry can implement a system of copy or playback protection and, under the DMCA, ALL the methods to exerce your fair use act are illegal.
Therefore you end up with having a right that can be achieved only by breaking the law.
The only chance we have is to make people see it and mobilise the public opinion around the fact that they are killing the possibility of fair use, you will only have as much fair use as the industry are wiling to give you.
Th eworse thing is that if they manage to make it possible for fair use they may manage to make it to free speech, that is you will still have the right to free speech, but all the means to use this right are illegal, thus making itt illegal.
I think this is very stupid from the movie industry or any other industry because if the only way to exerce your right to fair use is by breaking the law then we don't have any reason not to break the law for gaining access to the material without paying.
Like the above poster pointed out, fair use still exists, but now for digital medai , the DMCA makes unlawful all the means to achieve it, so you now have a right that you can't achieve.
This should make any american citizen feel very concerned because if it holds up in court they could theoretically do it to Free Speech too, you would still have the right to free speech, but all the ways to exerce this right made illegal, therefore making it impossible to exerce free speech legally, while respecting the constitution.
I'm happy not to be American and to live in a free country.
I begin to wonder how many journaling file systems we will have in the end, ext3, ReiserFS, XFS, JFS now.
Hey we soon will have more journaling file systems than window managers!
UCITA says that by default a software developer or distributor is completely liable for flaws in a program; but it also allows a shrink-wrap license to override the default. Well, guess what. This is pretty close to the law as it now stands.
There is a major difference, before UCITA they can disclaim everything they want but this probably wouldn't be enforcable in court, so if somebody had the wit and the money to sue Microsoft for loss of money due to the many hours employees have lost because of BSOD's (although it would be hard to prove) or because the NT server crashed and the whole company was paralysed, there is a possibility that the judge will say that the disclaimer is to much broad and make it void, this forcing MS (in this case) to pay compensations to the company, with the UCITA shrink-wrap license will have more power, thus making it very unlikely to ever gain compensation against a company selling shoddy software.
so individuals will still be able to argue assumption of risk (which is a damn good argument for free software; after all, you get what you pay for)
Right, and this is what support companies are here for (and if the company bought support she may also could prosecute the support company).
Again, this is already the case. You can't use it if you don't have a license, and all they have to do now to keep you from reverse engineering is bury in the license "PURCHASER agrees not to reverse engineer the PRODUCT."
You are wrong here, they can make any clause they want that I can't use their software unless I agree not to reverse engineer it but if I need to I will do it anyway. Why? Because the law of my country (French law and European law) allow reverse engineering for compatibility reasons, and NO license clause can make me loose this right, otherwise they could add a clause telling "You agree to purchase the next version of this software" or "You agree to buy this other software in addition to this software", which is called product tying (I think it is the right English name) and is illegal, doing it in a license clause wouldn't make it legal.
That's also why they often add a comment after reverse engineering clauses saying that the reverse engineering clause may be inapplicable in your country. For example see the Microsoft EULA:
(e) Limitations on Reverse Engineering, Decompilation and Disassembly.
You may not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCT, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(emphasis mine)
But what the EULA is doing is to say that such clauses are enforcable, therefore reverse engineering is NOT permitted.
Even if RE is permitted you are not protected from a lawsuit, this is what happens in the DeCSS case, where a German guy (therefore a resident of the European community) legally (because it is permitted in Europe) reverse-engineered the DVD scheme to ease the playing of DVD's on Linux. The fact that it is legal in this case didn't stop the DVD CCA to sue guys using this software legally obtained by reverse-engineering saying that he broke a NDA (which is probably invalid, since they tried to make a NDA on a mass market) and the MPAA to sue people arguing that it was not for compatibility's sake but rather for piracy (and deny that piracy was possible before, which would largelly destroy their case).
No state may pass a law which impairs the obligations of a contract which was lawful at the time it was entered into. UTICA cannot read provisions into license agreements which were entered into prior to UTICA's adoption: this would violate the sanctity of contract, which is something that American judges just won't accept.
I hope they won't, and that if this law is ever passed this will help to make it anti-constitutional, but that doens't change the fact that they are trying to do it, which is a bad thing in itself.
They could even prohibit you from describing what you see as flaws in the material. Unlikely. Such a term would be highly unlikely to stand as a in violation of public policy, that being free speech.
That still won't stop them from trying, isn't that Mr-the-new-CEO-of-Microsoft that, in an interview a few months ago, said about a question of why there was such a clause (benchmark forbidden) in MS EULA, something like: "I don't know if their is such a clause in Windows and everybody is doing the same in the industry"
The problem os that a lot of things that should be rejected by the courts, because to accept them would be stupid and clearly an injustice are being now accepted (well, at least in the US court).
Of course, disclaimer: IANAL (I'm not even American) but that is what I understand from my courses in computer laws.