Re: [dvd-discuss] Postage Meters and the "Right to Tinker"

[johnzu(at)ia.nsc.com]

>First of all, thanks for the response.  
>I'll try to trim this down a bit in my reply. 
>
>On Fri, 10 Jan 2003 17:34:44 -0700, John Zulauf wrote
>> Tim Neu wrote:
>
>Ok, then consider someone who only understands french paying somone to
>translate the book for them.  Clearly this is a derivitive work.  Yet it
>would also not be copyright infringment unless the derivitive work (the
>translation) were distributed.   Is this correct?

Let's see... would it pass the four part test.  Yes.  Then (based on the
resasoning I have been using, it is not infringing.

Sadly, in the current "cleanware" lawsuits the MPAA is suing to keep all the naughty bits
intact from service houses who will take your copy of a movie and "translate" it from
R to PG. So the case law is still being established.  Personally I think that is an
outrage, because the impact on the rights holder can ONLY be positive (people who wouldn't
buy an R film buy it because it is now PG), but that's a whole topic on it's own,

Trimmed yet more...

>
>How is the market and value of the work not zero, before and after cracking? 
>The company is giving copies of it away for free.  

The market value of the work they sent you is zero.  I'm sure that the 
copyright holder would be happy to have you send copies (including the
instructions) to all your friend that they don't have on their mailing.

The market value of a working copy of TurboTax is whatever the market
will bear through alternative channels of distribution (i.e. OfficeMax).

>They chose to give away copies.  They chose to transfer ownership of plastic
>disks and a copy of their programs for free.  

Yes.  The gave a copy that required a 1201 complaint process to operate.
Ignoring the DMCA, they gave you a copy of software that required either
their further permission (in the form of key) or the creation of a derivative
work to operate.  The creation of the derivative work (or the creation of a
key sans their permission, constitute copies that fail the four part test of
fair use -- namely the market impact test.

> They could have sold it in a
>store for a specific price, but instead they decided to give it away and rely
>on technical tricks to generate revenue. Which specific law says that they can
>change their mind later and tie conditions on the second sale after its
>already given away?
 
Actually, keyware couldn't be sold in a store for any but the most minimal
price, as the vast majority of the customers wouldn't be able to crack the TPM
or pay twice for the software (once for the media, once for the key).  So the
market value of the installer disk is zero (effectively) whether or not it was
mailed to you or provided for duplication costs at the retailer.

>
>They sell their software at zero price.  A cracked version being available at
>zero price is no change, correct?    

Actually they sell their "full version" software for some substantial non-zero
price, on the order of the key cost for the keyware version.  A zero cost working
version would have substantial negative impact on that (the pesky 3rd leg of the 4
part test again).


>You have still not provided any information on how someone might decide which
>copies are authorized and which are not.  

What the copyright holder has said is clear.  Effectively "here is what you need
to do to have our permission to install and run this program."  Any "reasonable
person" would understand their position. (Whether they would agree, is the bulk
of this thread ;-) )


>
>> > My understanding is that I own = I am authorized is firmly established in
>law
>> > and judicial interpretation.  
>> 
>> Actually the point of this whole mailing list is that current precedent
>> in Corley and Elcomsoft is that this is not true.  That the DMCA grants
>> arbitrary rights to copyright holders even after legal possession.
>
>I don't think there is any disagreement that the DMCA has changed things.  The
>discussion was basically not taking these changes into account. 

Comprendo.  This posts are so terse that misunderstanding is effectively a
guaranteed event.

>
>> > Why is this a special case?
>> 
>> Your access and copying fails the Harper and Row v. Nation four part
>> test for fair use.  You are altering it in such a way as to deprive the
>> rights holder of the right to charge royalties (or set other terms like
>> the GPL) for non-fair copies.
>
>They get royalties for the _distribution_  of copies... Or is the french
>translation example above copyright infringment?  

Why only there?  They would get other royalities were you to publically
perform the disk (some weird performance art) or use it in a player piano.
The Harper and Row test seems interested in results.  Whether it is a 
"personal copy" by 100% of the user base or a mass mailing to that same
audience it is the impact on the rights holder the court seems interested
in (at least in the 2nd and 3rd leg).

>
>> You clearly have the the ordinary use rights to run the unmodified
>> installer.  The right to copy however comes from the transaction with
>> the rights holder that provided the key.  That's why absent that
>> transaction the further copies of installation are unauthorized.
>
>You draw a distinction between the installer and the resulting program.  How
>do you draw the line?   Why? 

Because the copyright holders intentions are so clear, and the difference in
financial impact is materially different in each case.


>We agree that is the companies business plan.    But isn't the first sale the
>zero cost transaction that landed it in my mailbox?   Why doesn't that count?

It is of the installer, not of any derivative, infringing copies.

>
>The authetication is the "second sale".   Companies cannot control the terms
>of second or subsequent sales, otherwise there would be no used goods markets!
>  Unless there is copyright infringement even if no copies are distributed. 

Second in sequence, but first of the full version.  The first sale was of the
installer, a gift.  The next (second) first sale is the key.
The key sale is the first sale (the permission to have a copy of a particular 
work for valuable consideration) of the full version.

A "second sale" would be you transfering the key and disk to another person.
Whether you can do that is the subject of current cases about the extent to
which EULA's are binding-- but a different topic.