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

["Tim Neu" <tim(at)tneu.visi.com>]

On Thu, 09 Jan 2003 14:09:02 -0700, John Zulauf wrote
> Richard Hartman wrote:
> 
> > They sent me -- unsolicited -- a working version of TurboTax.
> > Working, that is, if I manage to bypass the DRM.  I do, however,
> > own the program.  Or are you suggesting that all those licensing
> > agreements that state that the company really owns all software
> > are valid?
> 
> Of course the software company owns the software, if by that you mean
> that they hold the copyright.  You own a copy of a installer disk 
> that when supplied a key will install TurboTax.  Do you have the 
> right to inspect the contents of that disk, sure.  Can you make fair 
> use including security analysis -- of course. Remember however, that 
> fair use is limited to copies that don't effect the market value of 
> a work. Circumventing the security of your TurboTax installer (and helping
> others do so) certainly DOES impact the market value.  Two
> possibilities:

Can you affect the market value of a work that is given away?  Wouldn't the
market value, before and after circumvention be zero?

After all, that is what is paid to transfer the disk to my possesion.  (0
dollars, eros, etc)
 
> (1) You don't circumvent.  You either pay the offered price to purchase
> your RTU or not.  Market value is reflected in that choice -- if the
> product is worth the price to you, you pay that price.

How about if I don't circumvent, but type in any old number and their
installer happens to accept it?   All I have violated is the intent of the
company, right?  

> (2) You do circumvent.  You don't pay the purchase price.  Effective
> market price for an RTU is zero (or near that), as the replacement good
> (the crack) is priced at zero.
> 
> Market price is dependent on the value of circumvention (0 or 1).
> 
> The crack is thus not fair use.  In summary, you own the installer disk
> and may make any ordinary or fair use of it.  Circumventing the DRM
> isn't a fair use as it adversely impacts the market value of the work.

I am no economist, but:

But how can something given away have market value?  I suppose you could mail
out "valuable" gifts and request a voluntary payment.  Some charities do that,
but having done so, will a court accept their crying about the reduction in
market value given the businesses decision to sell their product at a zero
price?    

Doesn't the companies action of giving the stuff away take precedence over any
claimed value of the product? 

Also, do fair use rights even apply if the rights of the copyright owner are
not being infringed?  Fair use is a defense to copyright infringment - you
have to be doing something that would normally be infringing for "fair use" to
kick in.  Presumably, I am cracking my own copy of the program, not publically
performing it, redistributing it, etc.   Even creating a derivitive work is
not infringement if it is not distributed.  Right? 

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