Re: Fair Use litigatable?

On Fri, May 26, 2000, Karen Coyle <karen.coyle[_at_]ucop.edu> wrote:
>
> One of the arguments that I made in my testimony before the
> Copyright Office regarding their anti-circumvention rule-making is
> that we cannot assume that DRM software and hardware will 1) exercise
> controls identical to the license agreement between vendor and user
> 2) work properly. This may not be a "fair use" argument, but Laura
> Gassaway was able to give an example in which the DRM controls ceased
> functioning due to an error and the vendor could not correct it for
> about 7 weeks. The question is whether "breaking" the DRM during
> that interval in order to gain access to legally acquired [...]

This is a really good point. Just this week --

   http://www.securityfocus.com/news/40

it was revealed that a trial installation of Microsystems CyberPatrol on a network firewall system using Network Associates Gauntlet software resulted in a buffer overflow problem that allowed external penetration of the security firewall. Here we have conflicting rules:

1. Network security requires being able to diagnose and fix security problems
2. DMCA allows software manufacturers to lock up internals of software so these security problems can't be fixed
3. External forces require filtering software with 2.

Normally 2 is fixed by the vendor if the filtering manufacturer wishes to continue selling the software. However, 3 overrules that, and CyberPatrol has been able to use the DMCA to prevent proper security analysis and evaluation (1 and 2). Judge Harrington in the Boston CyberPatrol case was too quick to dismiss claims of 1 and 3, stating that protection of young children with 3 was more important than fair use as in 1. Licensing considerations won't solve anything here because there are two vendors, and each can blame the other, and use the law to override any fair use.

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf