> I'm sorry, I don't see this as a fair use case. Do I think that the
> DMCA and encryption have the potential to restrict fair use and
> prevent exploitation of works in the public domain? Yes.
Doesn't this contradict the Constitutional purpose for having copyright at all? No copyright protection at all is better than no fair use.
> Do I think that movie studios are overreaching, greedy bastards
> who are using DVD encryption to protect their traditional market
> segmentation and make more money? Yes.
Is this what Congress created the DMCA to do, or was it to benefit consumers by fostering internet commerce in copyrighted material? Is CSS "access control" or "use control"?
> Do I think that a consumer has the right to decrypt DVDs so that
> he/she can view them on a Linux machine? No. If you want to view
> a DVD, buy a DVD player. If it doesn't work on a Linux machine,
> tough. I don't see anything in the Constitution that
> gives you the right to view DVDs on a Linux machine.
Do you see the words "their ... Writings"? The player is not part of the writings, which are solely the copyrighted movie. If the copyright monopoly can be ad hoc expanded to include protection for whatever non-writings purportedly increases the profits of the copyright industry, then copyright is evil and must be abolished. Find me one case that supports expansion of the copyright monopoly to protect something not part of the work itself. One.
The motion picture industry has tried to bridge monopoly control from movies to players twice before. In 1917 they did so in Motion Picture Patents v. Universal Film Mfg. Co., 243 U.S. 502 (1917) using patents, but failed. In 1948 they did so in U.S. v. Paramount, using copyrights, but failed again. This time they rely on some made up form of protection that is totally at odds with the Constitutional purposes for intellectual property and totally at odds with the stated intent of the statute, which is to engize e-commerce trading online.
The DMCA has a reverse engineering clause 1201(f) which allows circumvention in order to enable interoperability. It is only through an amazing act of sophistry that Kaplan avoids this exception.
> "Indeed, even academic commentators who take the extreme position
> that most injunctions in intellectual property cases are
> unconstitutional prior restraints concede that there is no First
> Amendment obstacle to injunctions barring distribution of copyrighted
> computer object code." Slip op. at 28.
Copyright cannot stop an author from publishing his own original code. DeCSS is copyighted by Jon Johansen and Derek Fawcus. It is their original expression. Judge Kaplan's quote makes it sound as if the author of the object code is objecting. That's false.
And this argument is utterly lame. Why should one form of expressive literary work (software) be treated any differently than another? Why cite "experts" instead of making the point directly? What is the criterion now for deciding which forms of communicaton can be censored? It appears to be "those forms that come before Kaplan can be".
Kaplan should have recused himself and I question his ethics.
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