Re: DMCA (was Re: Space-Shifting)

No evidence?? Ever heard of DivX?

From: Eric Eldred <eldred[_at_]eldritchpress.org> To: Multiple recipients of list <cni-copyright[_at_]cni.org> Date: Wednesday, October 18, 2000 9:41 PM Subject: DMCA (was Re: Space-Shifting)

>On Sat, Oct 14, 2000 at 02:30:59PM -0700, Tyler Ochoa wrote:
>> [...]
>> I think the DMCA overrules Vault v. Quaid. It makes the selling of
>> circumvention technology illegal, even if it can be used for
non-infringing
>> purposes, if the primary purpose is for infringement.
>
>I think the difference between Vault v Quaid and Universal v Sony on the
one
>hand and the DMCA on the other is that the former allowed *any*
"infringing"
>technologies if there was a "substantial non-infringing use," while the
>rule under the DMCA is that a small exception can be made for "substantial
>non-infringing commercial use," otherwise *all* fair use is banned.
>(This rule is slightly different from Tyler's "primary purpose is for
>infringement.")
>
>Open source advocates find this latter rule inapplicable. And the
>constitutional basis for fair use as recognized under Vault is being
>thwarted by a statute that has not been sufficiently examined to see
>if it is conflict with the First Amendment.
>
>I believe the legislative history of DMCA shows that legislators had no
>intention to overrule the Betamax case, and I believe the same is true of
Vault
>v Quaid. The legislators might have been on the right track following the
WIPO
>treaty to ban "black box" devices that allow users to circumvent paying for
>pay-per-view TV. But in this case, users are not circumventing paying.
>Granting movie studios a perpetual patent-like right to control licenses
for
>players, and using copyright law in the form of the DMCA to do that, seems
>beyond the scope of congressional power.
>
>> >>>>>
>> In the DeCSS case we amici argue that for the purposes of compatibility,
to
>> construct a Linux open source DVD player, it was necessary at one point
to
>> decrypt on a Windows machine, save a copy, and then move the copy to a
Linux
>> machine. Do you think that should not be fair use, because of your
framework
>> of what and what is not allowed with reproduction under fair use? <<<<<
>>
>> 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. 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. 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.
As
>> Judge Kaplan said:
>>
>> "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.
>
>Well, the DMCA does allow circumvention for the purposes of
>compatibility. The lower court ignored that or dismissed it.
>And the computer code argument Kaplan cites does not rule
>here. (Though I'd like to hear some more from the "academic
>commentators" on this issue.)
>
>I don't see anything in the Constitution that bars me from
>viewing DVDs on a scanning electron microscope--or my own
>Linux machine--if I have purchased the DVD disc. This is
>not a license issue, since everyone agrees no license is
>involved here--no license says I cannot view the DVD on
>a Linux machine. Nor is it a patent issue nor a normal
>copyright infringement case--there is no asserted "substantial
>similarity" of expression involved. If it is copyright law
>that bars me from viewing the DVD on a Linux machine, what
>happened to the "limited times" provision of the Copyright
>Clause? (Note that the same encryption technology is being
>used to lock up public domain material as for material under
>copyright.)
>
>What is happening here is that a piece of computer code is
>being banned under the copyright law (with prior restraint)
>because a copyright holder asserts that it might "threaten"
>their rights to make money--even if there is no evidence
>to show it can be "infringing" in any normal sense. In my
>opinion copyright should be used to encourage publication,
>not to ban all future publication of an expression.
>
>I believe this IS a fair use case, and briefs by amici well
>present that case. Unless the encryption can be lawfully
>circumvented, nobody can make fair use of the encrypted
>material, for example by quoting parts of a movie in a
>lecture at a law school. It is disingenuous to assert that
>users have the right to circumvent if they can only figure
>out how to do it themselves. This is the key point of Vault
>v Quaid--that if users have that right, then they also have
>the right to purchase the circumventing technology to do so.
>
>If the higher courts do not recognize this, then copyright
>law as we know it will start to become meaningless in today's
>economy. Publishers will lock up works forever and fair use
>will remain only a technical possibility for a few experts.
>The balance will be tipped toward publishers not the public.
>
>
>
>
Received on Thu Oct 19 2000 - 02:10:44 GMT