DMCA: 1201(a)(3)(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and...
In the case where the author (i.e. copyright owner) is not the same person who designed the encryption scheme, it would be much harder to argue that NO decryption by others is authorized. Why, I can imagine where a CEO DRMs all his files then gets hit by a bus. Under his contract the company owns the copyrights in all his work, but now they can't access it! Guess what, they can authorize someone to break Microsoft's encryption (which I take as a given is not only possible, but relatively easy).
Now, that program leaks onto the net. Can Microsoft sue? I don't think so, the program has a legitimate non-infringing use (just like a VCR). In fact, I don't understand why this wasn't argued against the MPAA in the DeCSS case. Presumably, when you purchase a DVD, you also purchase the right to ACCESS the content on that DVD (at least to watch it!). So, the manufacturer has impliedly given you permission to de-encrypt the DVD to watch it, and unless that authority is limited to authorized DVD players (which I have never seen printed on a DVD package) then DeCSS just lets you do what the MPAA has impliedly given you authority to do, namely access the disc!
I'm sure someone will let me know if I'm wrong...
This could be the case that gets the DMCA (or at least part of it) declared unconstitutional.
The real problems with the DMCA are the sections which prevent circumvention of devices (or methods, etc.) which control access to a work. This effectively gives copyright holders a new right, the right to restrict access. This is not among the rights granted by the copyright statute (right to copy, distribute, perform, etc.) These sections, in reality, mean that the copyright holder can prohibit you from accessing their works, even after you have purchased a legitimate copy, as exemplified by the DeCSS case. It is quite possible that being able to restrict access to a work contradicts the purpose of copyright as stated in the Constitution: "To promote the progress of science and the useful arts." If access restrictions are contrary to this constitutional policy, they may very well be unconstitutional. And this is the perfect case to illustrate that.
Lexmark is claiming that these replacement cartridges allow access to some code which resides on boards within the printer and not on the cartridges themselves. This is the focus of their circumvention argument (they also argue that these cartridges contain actual copies of other code, but that is purely a traditional copyright problem). Thus, Lexmark is claiming that even though you bought their printer, you don't have the right to access their code unless you're using their cartridges. This is not a case where Lexmark is worried about copying or piracy. The 2600 case involved both access and copying (sort of) but the court was too stupid to look past the piracy rants of the MPAA and see the problems with the access restrictions. Here, we have a perfect case to illustrate why the entire access control section of the DMCA should be declared unconstitutional, without worrying about claims that piracy of digital works will cause the downfall of western civilization.
Of course, even if the access control sections were removed, copyright holders could still create hybrid control systems which prohibit both access and copying. These could then still be enforced under the anti-copying provisions. But, we can save that fight for after a court has noticed the distinction between access controls and copy controls. Then we might have a chance to win.
Thanks to Lexmark for bringing a perfect case for those of us who want to see the DMCA destroyed! (By the way, IANAL in the technical sense, but I do have a law degree in addition to a computer science degree.)
This is great news! This may be the case that gets the DMCA (or at least part of it) declared unconstitutional!
Let me explain. (By the way, IANAL in the technical sense, but I do have a law degree in addition to a computer science degree.) The real problem with the DMCA are the sections which prevent circumvention of devices (or methods, etc.) which control access to a work. This effectively gives copyright holders a new right, the right to restrict access. This is not among the rights granted by the copyright statute (right to copy, distribute, perform, etc.)
This is the part that causes the most controversey. This section, in reality, means that the copyright holder can prohibit you from accessing their works, even after you have purchased a legitimate copy! I fail to see how being able to restrict access to a work furthers the purpose of copyright, as stated in the Constitution, "To promote the progress of science and the useful arts." If access restrictions are contrary to this constitutional policy, they may very well be unconstitutional. And this is the perfect case to illustrate that.
Lexmark is claiming that these replacement cartridges allow access to some code which resides on boards within the printer and not on the cartridges themselves. This is the focus of their circumvention argument. (they also argue that these cartridges contain actual copies of other code, but that is purely a traditional copyright problem). Thus, Lexmark is claiming that even though you bought their printer, you don't have the right to access their code unless you're using their cartridges. This is not a case where Lexmark is worried about copying or piracy. The 2600 case involved both access and copying (sort of) but the court was too stupid to look past the piracy rants of the MPAA and see the problems with the access restrictions. Here, we have a perfect case to illustrate why the entire access control section of the DMCA should be declared unconstitutional, without worrying about claims that piracy of digital works will cause the downfall of western civilization.
Of course, even if the access control sections were removed, copyright holders could still create hybrid control systems which prohibit both access and copying. These could then still be enforced under the anti-copying provisions. But, save that fight for after a court has noticed the distinction between access controls and copy controls. Then we might have a chance to win.
Thanks to Lexmark for bringing a perfect case for those of us who want to see the DMCA destroyed!
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In the case where the author (i.e. copyright owner) is not the same person who designed the encryption scheme, it would be much harder to argue that NO decryption by others is authorized. Why, I can imagine where a CEO DRMs all his files then gets hit by a bus. Under his contract the company owns the copyrights in all his work, but now they can't access it! Guess what, they can authorize someone to break Microsoft's encryption (which I take as a given is not only possible, but relatively easy).
Now, that program leaks onto the net. Can Microsoft sue? I don't think so, the program has a legitimate non-infringing use (just like a VCR). In fact, I don't understand why this wasn't argued against the MPAA in the DeCSS case. Presumably, when you purchase a DVD, you also purchase the right to ACCESS the content on that DVD (at least to watch it!). So, the manufacturer has impliedly given you permission to de-encrypt the DVD to watch it, and unless that authority is limited to authorized DVD players (which I have never seen printed on a DVD package) then DeCSS just lets you do what the MPAA has impliedly given you authority to do, namely access the disc! I'm sure someone will let me know if I'm wrong...
Actually, no, I never took it. I was sick of law at the time, although now I'm reconsidering...
The real problems with the DMCA are the sections which prevent circumvention of devices (or methods, etc.) which control access to a work. This effectively gives copyright holders a new right, the right to restrict access. This is not among the rights granted by the copyright statute (right to copy, distribute, perform, etc.) These sections, in reality, mean that the copyright holder can prohibit you from accessing their works, even after you have purchased a legitimate copy, as exemplified by the DeCSS case. It is quite possible that being able to restrict access to a work contradicts the purpose of copyright as stated in the Constitution: "To promote the progress of science and the useful arts." If access restrictions are contrary to this constitutional policy, they may very well be unconstitutional. And this is the perfect case to illustrate that.
Lexmark is claiming that these replacement cartridges allow access to some code which resides on boards within the printer and not on the cartridges themselves. This is the focus of their circumvention argument (they also argue that these cartridges contain actual copies of other code, but that is purely a traditional copyright problem). Thus, Lexmark is claiming that even though you bought their printer, you don't have the right to access their code unless you're using their cartridges. This is not a case where Lexmark is worried about copying or piracy. The 2600 case involved both access and copying (sort of) but the court was too stupid to look past the piracy rants of the MPAA and see the problems with the access restrictions. Here, we have a perfect case to illustrate why the entire access control section of the DMCA should be declared unconstitutional, without worrying about claims that piracy of digital works will cause the downfall of western civilization.
Of course, even if the access control sections were removed, copyright holders could still create hybrid control systems which prohibit both access and copying. These could then still be enforced under the anti-copying provisions. But, we can save that fight for after a court has noticed the distinction between access controls and copy controls. Then we might have a chance to win.
Thanks to Lexmark for bringing a perfect case for those of us who want to see the DMCA destroyed! (By the way, IANAL in the technical sense, but I do have a law degree in addition to a computer science degree.)
-Tim Watson
Let me explain. (By the way, IANAL in the technical sense, but I do have a law degree in addition to a computer science degree.) The real problem with the DMCA are the sections which prevent circumvention of devices (or methods, etc.) which control access to a work. This effectively gives copyright holders a new right, the right to restrict access. This is not among the rights granted by the copyright statute (right to copy, distribute, perform, etc.)
This is the part that causes the most controversey. This section, in reality, means that the copyright holder can prohibit you from accessing their works, even after you have purchased a legitimate copy! I fail to see how being able to restrict access to a work furthers the purpose of copyright, as stated in the Constitution, "To promote the progress of science and the useful arts." If access restrictions are contrary to this constitutional policy, they may very well be unconstitutional. And this is the perfect case to illustrate that.
Lexmark is claiming that these replacement cartridges allow access to some code which resides on boards within the printer and not on the cartridges themselves. This is the focus of their circumvention argument. (they also argue that these cartridges contain actual copies of other code, but that is purely a traditional copyright problem). Thus, Lexmark is claiming that even though you bought their printer, you don't have the right to access their code unless you're using their cartridges. This is not a case where Lexmark is worried about copying or piracy. The 2600 case involved both access and copying (sort of) but the court was too stupid to look past the piracy rants of the MPAA and see the problems with the access restrictions. Here, we have a perfect case to illustrate why the entire access control section of the DMCA should be declared unconstitutional, without worrying about claims that piracy of digital works will cause the downfall of western civilization.
Of course, even if the access control sections were removed, copyright holders could still create hybrid control systems which prohibit both access and copying. These could then still be enforced under the anti-copying provisions. But, save that fight for after a court has noticed the distinction between access controls and copy controls. Then we might have a chance to win.
Thanks to Lexmark for bringing a perfect case for those of us who want to see the DMCA destroyed!
-Tim Watson