[dvd-announce] EFF Questions -- the challenge

[Wendy Seltzer <wendy@seltzer.com>]

The EFF (and now Declan's article) have challenged the list to produce 
responses to some specific questions. Where are we on these?  I've tried to 
add references I've seen on the list.

  In particular, if anyone's working on a topic offline, or wants to 
discuss by off-list email with others, please let us know.
(It's easiest to find the messages again if you label as Tech Issue #X / 
Legal Issue #Y and change subjects when the topics change.)

--Wendy

>Robin Gross wrote:
> >
> > LEGAL ISSUES:
> >
> > 1.  We need a memo on the issue of DVD as a computer program or data
> > file.  What was the legislative intent behind the DMCA exemptions for
> > DVDs?  Do they apply or was this only intended for "software"?

one person looking off-list.

> > 2.  DVD region coding and possible legal ramifications.  Does this
> > scheme violate antitrust laws as a cartel organizing a restraint in
> > trade?  Does this scheme violate a European  Directive regarding unfair
> > trade?
> >
> > 3.  Comprehensive Fair Use Analysis.  We need a memo outlining the most
> > important fair use cases (approx. 35) and discussing how they impact
> > this case.
> >
> > 4.  Comprehensive Copyright/First Amendment Analysis.  We need a memo
> > outlining the most relevant copyright cases that have involved First
> > Amendment defenses and discussing how they impact this case.

http://cyber.law.harvard.edu/archive/dvd-discuss/msg01145.html

> > 5.  Reverse Engineering Analysis:  We need a memo outlining the legal
> > cases dealing with reverse engineering and how they apply to this case.

Thread beginning at 
http://cyber.law.harvard.edu/archive/dvd-discuss/msg01096.html
Anyone want to see what a search on "reverse engineer! w/s copyright" turns 
up through jurisline (linked off
http://cyber.law.harvard.edu/openlaw/dvd/resources.html ) ?

> > 6.  Click wrap licenses. a)  What is the case law supporting the
> > requirement for a manifesting of assent to contract? b) Does case law
> > support the creation of binding agreements through purchase only? c)
> > what is the impact of "hacking" around a click-wrap on the requirement
> > for assent to contract?

one off-list response looks pretty thorough.

> > 7.  What is the burden of proof standard regarding the weight of the
> > evidence needed to prove an initial misappropriation in a trade secret
> > case?  What is the burden of proof (weight) needed to prove
> > misappropriation by a republisher?
> >
> > 8.  What are case law examples involving the loss of trade secret status
> > through inadvertence?

possibly one off-list.

> > 9.  What cases have discussed the limitations imposed upon Congress
> > regarding Copyright?  How does the Constitution constrain what Congress
> > can do in fixing the rules for copyright?

http://cyber.law.harvard.edu/archive/dvd-discuss/msg01145.html
Bryan's document: 
http://bioinformatics.ucsf.edu/bwtaylor/dvd/copyright_limits.txt

> > TECH ISSUES:
> >
> > 1.  Region Coding.  How does region coding prevent playback?  What are
> > the different ways to bypass this technological measure and how easy are
> > they to accomplish?  Are there DVDs that are coded to play in all
> > regions?

http://cyber.law.harvard.edu/archive/dvd-discuss/msg01020.html
http://cyber.law.harvard.edu/archive/dvd-discuss/msg01022.html
One response received off-list.

> > 2.  True or False: It is impossible to fast-forward past commercials or
> > FBI warnings on DVDs?

Sometimes true, but not always?
http://cyber.law.harvard.edu/archive/dvd-discuss/msg01015.html
Folks with DVD players and commercial DVDs, please confirm.

> > 3.  What other operating systems are left unsupported by DVDs?

http://cyber.law.harvard.edu/archive/dvd-discuss/msg01014.html
http://cyber.law.harvard.edu/archive/dvd-discuss/msg01021.html


> > 4.  What are other concrete examples are there of occasions in which
> > reverse engineering has been critical to achieving a technological break
> > through in an industry?  Are there examples of other attempts to prevent
> > such activity and what was the result?

Ongoing discussion on-list.
Thread beginning at 
http://cyber.law.harvard.edu/archive/dvd-discuss/msg01096.html

 >5.  Top five myths about DeCSS.  What are the top five greatest
 >misunderstandings about the DeCSS technology and why are they wrong?

Anyone to compile?

 >6.  I'm not sure this is even possible: Can we determine the number of
 >copies of DeCSS found on Web Sites around the world on the following
 >dates? 10.31; 11.31; 12.26; 12/28; 1/15; 1/31; 2.29?  Please document
 >all findings.  If you can't find the historical figures, can we find
 >current figures?

http://cyber.law.harvard.edu/archive/dvd-discuss/msg00996.html



wendy@seltzer.com || wseltzer@kramerlevin.com
http://cyber.law.harvard.edu/seltzer.html