Re: OT: Movie editing... (Was RE: [dvd-discuss] Fair use inthewild ...)

["John Zulauf" <johnzu(at)ia.nsc.com>]

Wendy Seltzer wrote:
>   Unless courts recognize the
> possibility of "significant non-circumvention use" of a circumvention
> device, we won't be able to reach the unprotectable part of the mix.

Actually on should require a fair use defense for circumvention devices
(and their distribution (trafficking).  If a circumvention device has a
significant fair-use -- i.e. it enables the legitmate possesor of a copy
(digital or physical) of a copyright work to make non-infringing uses
precluded by the TPM or DRM, then the device should be defensible and
exempt.  A further exemption for all academic, research, or scientific
purpose would clear up the whole of the matter.  Yes it wouldn't
legalize "cable descramblers" -- but I don't think that's what most of
us are about here.

This isn't my idea.  Kaplan said it with words to the effect that the
anticircumvention measures do not have a fair use defense under the
DMCA.  With that corrected:

(a) most of the free speach "horribles" go away.  If there is a valid,
legal use for a technology -- it's trafficking cannot be sued or
prosecuted.

(b) it removes ALL incentive for DRM/TPM's to overstep the bounds of the
constitutionally granted "exclusive rights" of the copyright holder,
since if done the DRM/TPM becomes fair game for attack.  This would lose
the copyright holder protection of both their legitimate AND usurped
rights -- rendering the use of the DRM/TPM moot.  Thus "more" (an
usurped use control right) would result in "less" (circumvention becomes
legal) protection, and the system is self-regulated.

(c) it provides ongoing reasonable protection for "prior to first sale"
DRM's as (a) these do not infringe fair use, and would not be subject to
legal attack except as part of a scientific or academic purpose.  

(d) Healthly non-usurping pre-first-sale(access) DRM would be protected,
while the security and robust of the methods could still be tested***.  
Since no-post first sale DRM's would exist or be protected by law, only
future transaction (which could be protected by security enhancements)
would be at risk, and the whole of the matter would become less
volatile.  Instead of "losing the protect for all sold works" (that's an
odd oxymoron isn't it) it would be identifying leaks (which are probably
arleady being exploited by the black hats anyway) in an eCommerce system
in order to make the system more secure.  This is a win-win, as it cuts
down "stolen goods" losses which are a factor in any pricing scheme.

The question is whether the courts -- by looking at the "umbra" and
"emanations" of the DMCA can read into "nothing in this title shall
reduce ... fair use" into a broad exemption of circumvention required to
enable such use.  Essentially the same argue that the gov't cannot claim
to allow freedom of speech and of the press but allow speakers to be
muzzled and illegalize muzzle removers or make the possesion and
trafficking in ink illegal.  Essentially telling Kaplan he's wrong --
that without reading in a fair use defense and exemption for the
anticircumvention and trafficking measures that the law is inconsistant
and unconstitutional.  Felten could publish, Corely could post, Dmitry
could go home... and all would be well.


Best regards,

.002

Vacation at t minus 4 hours and counting...

***Security research reminds me greatly of "The Pratice Effect" by David
Brin -- where item become better at what they do (knives become sharper,
walls stronger) through there vigourous exercise (thus the prison has
the prisoners beat on the walls to strenghten them...).