Re: [dvd-discuss] Re: TurboTax for free?

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

Okay, quadruple indenting... ( the perl to convert a regular thread to
this is below (and yes it does look like 'C' -- sorry Larry)

Also, I'm doing my best at a DA argument I'm not fully convinced of
(legally), I still think that ethically, one doesn't take advantage of
fools, even fools with lots of money.

Richard Hartman wrote:
RH: >...
JZ: >>>>(3) The TPM protecting TurboTax on the disk is clearly
JZ: >>pre-first-sale,
RH: >>>
RH: >>>I disagree on "clearly".  Yes, there was no sale, but
RH: >>>there _was_ a transfer of property as a gift.  That is
RH: >>>the crux of the issue.
JZ: >>
JZ: >>There is transfer of property on the full functioning "install
disk".
JZ: >>TurboTax won't function without (a) key not currently in your
JZ: >>possession
RH: >
RH: >The DVD won't function witout the key that was
RH: >issued to the player manufacturer . . .

Ok.  However, since you don't have to get that key from the provider of
the DVD (through an additional sales transaction) your reciept of an
unsolicited DVD requires no additional transaction with the copyright
holder (unlike Turbo tax).  Whether the CSS system on your DVD is valid
doesn't impact that the sender has given you a license for home viewing.

RH: >
JZ: >>or (b) modifying the contents (creation of a derivative work)
JZ: >>to remove
JZ: >>requirement (a).
RH: >
RH: >Likewise (aka: DeCSS).

You don't have to modify the DVD to use a DeCSS based player.  No
modification of the DVD is needed regardless of the validity of the key
you possess.

RH: >
RH: >>As the key is only transferred upon a sales event,
RH: >
RH: >As the key is only transferred to a licensed DVD
RH: >player manufacturer . . .

Separate from the sale of the DVD.  The key to install a full version of
TurboTax is not provided with your functioning install disk.  Nor is
their any presumption by the provider that you have access to a key
aside for sending them $.  A DVD provider presumes you have a key in
your possession, and couldn't provide one even if asked.

RH: >
JZ: >>action (b), the modification of the disk to remove
RH: >
RH: >modification of the disk?  nay, say instead "the creation
RH: >of a device to circumvent the protection" (a la DeCSS) . . .

fine, but materially the function of the circumvent differs.  In one
case you are avoiding paying for the license to use the software.  In
the other case you are ignoring restrictions on a third party contract
to hide a trade secret.  Whether you use CSS or DeCSS the functionality
is the same, and the commercial transaction with the DVD vendor is the
same.  With a TurboTax cracker, the transaction with the vendor is one
of non-payment.

RH: >
JZ: >>requirement (a), is a
JZ: >>pre-first-sale circumvention.
RH: >
JZ: >>
JZ: >>Q.E.D.
JZ: >>
RH: >
RH: >You've just proved that Jon should've been found guilty.

If you believe Judge Kaplan's interpretation of the law.  I don't
believe that is a valid interpretation.  CSS doesn't protect any right
of the rights holder.  It isn't copy protection, it isn't access
control.  It just shouldn't have been considered covered by the law,
especially since it is applied in a post-first-sale way.  However, from
the first hearing Judge Kaplan conflated the consent with authority
(another old argument) and never allowed a record to be developed --
i.e. prove that your assertion of "CSS is a 1201 TPM" is true.  The
appeals court swallowed that conflation whole (though the appeal never
challenged it directly) and the rest is tragicomedy. 

RH: >
JZ: >>
JZ: >>P.S. I reread the MPAA quote.  How can a "technical measure"
protect
JZ: >>against "infringing copies".  Since whether a copy is
JZ: >>infringing or not
JZ: >>is a matter for a four part legal test (and with the
unavailability of
JZ: >>AI based courtrooms (courtROMS?), all a "technical measure" can do
is
JZ: >>prevent all copies, and since preventing all copies (post
JZ: >>first sale) is
JZ: >>not "a right of a copyright holder" thus the "technical
JZ: >>measure" cannot
JZ: >>qualify for 1201 protection.
RH: >
RH: >This has long been the root argument against
RH: >technical enforcement of legal restrictions.

And the root of the legal distinction between the unsolicited DVD and
unsolicited TurboTax.  The DVD needs nothing else from the copyright
holder to function, TurboTax does.  CSS can't determine "authorized
persons", the TurboTax installer can.

RH: >
JZ: >>
JZ: >>P.P.S.  The is the logical opposite the TurboTax, where the key
system
JZ: >>is access control (the key denotes your PC users as
JZ: >>"authorized persons"
JZ: >>and the passing of the key is a sales event.
RH: >
RH: >But if I create a circumvention device, I don't need their key.
RH: >If I can brute-force the key, I don't need their key.
RH: >If I use someone else's key, I don't need their key.

Except you are brute forcing a key to avoid a sales event...

RH: >
RH: >All of the above are _exactly_ as applied to CSS.

and here you are not.

RH: >
RH: >I'm still looking for the distinction.

That's the best I've got for you.  Personally I find p-spam offensive
and an eco-disaster.  However, I can see (even though the courts have
not yet) a huge distinction between evading a license fee by
circumvention, and "circumventing" use controls such that no royalty or
fees to the rights holder are effect.  It's the old "the right to swing
your fist ends at my nose" saw.  Circumventing TurboTax hits the rights
holder on the nose (though they've stuck it out far enough),
circumventing CSS doesn't impact the rights holder at all.

RH: >
RH: >You are focussing on the passing of the key, I am
RH: >dealing with the passing of the software itself (as
RH: >a gift).  If you want to focus on the key you have
RH: >to do the same when discussing the DVD vulnerability.
RH: >
JZ: >>The key testing software
JZ: >>*can* discriminate (by validating the key) valid and invalid
access
JZ: >>(without need of a courtroom).
RH: >
RH: >Isn't that what CSS did?  Discriminate valid keys?

Valid keys yes.  Valid users no.  Circumventing TurboTax creates fake
valid users.  Circumventing CSS doesn't.


#!/usr/bin/perl -p
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# i.e. > JZ: >> should map to JZ: >>>
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