Re: [dvd-discuss] Sklyarov Motion to Dismiss Indictment

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

The brief attacks all the questions of law beautifully.  It asks the
questions I hoped would be asked (and were prevented from being asked in
Coreley do to the lower Courts erroneous conflations of "authority" and
"consent", "access" and "use", "right" and "desire".  In Coreley the P's
were allow a very low standard of illegal circumvention as the "consent"
of the rights holder to "use" contrary to the "desire" of the P's. 
Under that standard, accusation is guilt. No wonder Judge Kaplan kept
saying what a simple case he thought it was.

Here the D's are preemptively striking against such conflation -- laying
out in carefully reasoned terms what the statute says, what the
legislative history indicates about intent, and the clear ambiguity of
the prohibitions of tools enable "post first sale" uses.

The counter attack will be that the eBook (and DVD) controls are
"access" control (see you can't get to the content) not use controls. 
These definitions are both critical and point to further ambiguity of
the statute.  What is "access?"  Is it the mere ability to read a work,
or is it a "first sale" or "authorized person" event.  Certainly a
"first access" doctrine (similar to first sale) would be useful. 
However the distinction of "controls access" and "protects a right" and
what these mean is critical.

Further counters will be that banning all "circumventing" of TPM's that
"protects a right" was the intent of Congress -- and that the unique
challenges of digital media make it important to redefine "fair use"
smaller.  Look to see "a constitution is not a suicide pact" to support
that notion.  As if protecting large corporations with obsolete business
models were a compelling gov't interest -- feh! 

.002



Richard Hartman wrote:
> 
> I like the section titled "The Lawful Uses of AEBPR."
> Lots of real-life uses of the Elcomsoft software to
> perform circumvention, including at least one by a
> governmental agency (State of Wisconsin, "in order to
> resolve the problem of 'content being restricted to the
> computer that was used to download the ebook.'" ).
> Even better, another case states "One individual sought
> a copy of AEBPR on behalf of Time Warner Communications."
> 
> Take that, Jackboots!
> 
> This motion also goes into the authorization issues.
> Wonderful!
> 
> If this motion is accepted by the courts, can that
> be cited as precedent, or would this be another case
> of winning w/o leaving any lasting marks on the legal
> battleground?
> 
> --
> -Richard M. Hartman
> hartman@onetouch.com
> 
> 186,000 mi./sec ... not just a good idea, it's the LAW!
> 
> > -----Original Message-----
> > From: John Young [mailto:jya@pipeline.com]
> > Sent: Tuesday, January 29, 2002 8:03 PM
> > To: dvd-discuss@eon.law.harvard.edu
> > Subject: [dvd-discuss] Sklyarov Motion to Dismiss Indictment
> >
> >
> > We offer Dmitry Sklyarov's "Motion to Dismiss Indictment
> > for Violation of Due Process" filed yesterday:
> >
> >   http://cryptome.org/usa-v-ds-mtd.htm
> >
> >