Re: [dvd-discuss] Dmitry Indictment Doc

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

John Young wrote:
> 
> The 7-page Dmitry/Elcom indictment document:
> 
>   http://cryptome.org/dmitry-indict.htm

Well... unlike my usual verbosity I'm at a loss for words.  I only have
one as I sit here stunned and depressed.


>>>> APPALLING <<<<



(finding his breath....)

The one ray of hope here is the phrase found in all counts

"Technology that Protects a Right of a Copyright Owner"

That hope comes in the following way -- the rights of a copyright owner
are limited both by law and precedent.  Points I'd like to see the
defense raise

(1) Exactly what of the limited rights are protected by the eBook TPM?
Unlike the DVD case, the prosecution should be required to show what
right of copyright owner is specifically being violated, and that the
defendants actually did so.

(1.1) Is the right protect is to prohibit infringing copies? 
(1.1.1) Doe AEPBR have the ability to make infringing copies, or is it
primarily designed to do so?
(1.1.2) Would not some additional software be required to make
infringing copies and would that software be considered a "component" of
a this device? (then why isn't the Apache and ftp team in the dock?)

(1.2) Does the gov't understand that copies of the encrypted eBook are
still possible?
(1.2.1) Does the gov't argue (or stipulate) that copies of the encrypted
work are not infringing?
(1.2.2) Would this mean that one could copy the encrypted work freely?
(1.2.3) If encrypted copies are infringing copies, how does the TPM
function to prevent infringing copies? (it acts to make the infringing
copies less usefull... but if they are still infringing, then it does
not protect the very right it claims)

(1.3) Is the right to enforce the EULA of the user utilizing only the
computer on which the copy was purchased?
(1.3.1) How can enforcement of a EULA fall under copyright rights, when
it is extra-copyright contractual obligations?
(1.3.2) Is the restriction to a single computer a right of the copyright
owners (caselaw on space-shifing to the contrary?)

(2) Are their any limits on what a TPM may prevent?
(2.1) Is "the prevention of fair use" become a right of the copyright
owner
(2.1.1) How about prevention of excerpting text?
(2.1.2) ... prevention of space shifting?
(2.1.3) ... prevention of archival?
(2.1.4) ... prevention of use of text-to-speech? (ADA challenge?)
(2.1.5) ... prevention of loaning?

(2.2) Are their any limits in scope over what a TPM restricts beyond a
"right of the copyright owner" for published works?
(2.2.1) Beyond controlling access to "authorized persons" (prior to
first sale) what are the affirmative restrictions a TPM may impose?
(2.2.1.1) Can a copyright owner impose arbitrary restrictions on use,
time and place, playback platform, time-shifting, space-shifting, or
archival copying, disable fast-forward/rewind/pause features?
(2.2.1.2) Can a copyright owner impose restrictions which would affect
privacy or civil rights... e.g. can they require monitoring number or
ethnicity of viewers?
(2.2.2) If a TPM exceeds those limits is this "abuse of copyright?"
(2.2.3) If a TPM exceeds those limits is circumvention of such a TPM a
1201 violation?
(2.2.4) If circumvention a TPM exeeding those limits is illegal, what
redress does the public have against those who would exceed their rights
in abuse of the limited exclusive rights of the copyright holder?
(2.2.5) If a TPM protects both "a right of a copyright owner" and other
asserted but unfounded rights (controlling use, etc.) is it still a 1201
protected TPM?

(2.3) Without limitations on the extra-copyright restrictions of a TPM
how can abuse of the copyright owner's rights be prevented? 

(3) What is the standard of "primarily designed?" 
(3.1) If a tool circumvents a TPM to reenable fair-use, and incidentally
makes the file copiable is this a "primarily designed" to circumvent?
(3.2) If the same TPM is used for works both for current and lapsed
copyright works (public domain) is a tool which circumvents "primarily
design" for 1201 violation?

The MPAA got a free ride on these matters in Univeral v. Corely, how
would the defense bring this issues up a trial or to the attention of
the court?

Perhaps in a motion to dismiss, as the the prosecution has not brought
all elements needed in the indictment, or in motions to settle questions
of law?  If the law is not well explore (as it is in this first criminal
case for the DMCA), how can a lawyer properly defend a client without
know what the standard and burden of the prosecution is going to be --
and thus build the case to refute the evidence that would meet that
standard?  This seems especially true as de novo facts and arguements
cannot be introduced and questions of relevance cannot be argued (in
term of objections etc.) without first knowing the ground rules.

The FBI seems to have a very simplistic view "A" is a technology that
(among other things) is alleged to prevent infringing copies -- "B"
circumvents "A" and therefore subject to 1201 prosecution.  The actual
"right of a copyright owner" is left as an ink blot...  Kafka-esque, no?

.002