[dvd-discuss] Re: nimmer

[Eric Seppanen <eds(at)reric.net>]

On Fri, Nov 02, 2001 at 02:09:15PM -0800, Bryan Taylor wrote:
> 
> ProCD also rules that such contracts are not preempted by the Copyright Act.
> Your girlfriend might be interested in Nimmer's dismantling of ProCD's
> reasoning:
> 
> http://cyber.law.harvard.edu/ilaw/Contract/nimmer.html

It's kind of hard to take this as a sensible reference when it says
stuff like this:

"Although one can appreciate the desire of the studio to seek any and
all legal protections it can, the copyright laws of today (and certainly
those of tomorrow) should prove more than adequate to protect the
studio'sinterest, even absent the proposed contract. Modifying the Divx
software to defeat the lockout (assuming, for the sake of argument, it
were technically possible) likely would involve either unauthorized
reproduction of at least a portion of the copyrighted work, or the
creation of an unauthorized derivative work.  Either way, copyright
infringement liability would result. Moreover, any doubt about the
impropriety of defeating anti-copying technology will likely be laid to
rest by pending federal legislation. Thus, even on the so-called 
bleeding edge of technology, we find it difficult to see a need for
state law protection of copyright rights in connection with the
mass-market distribution of copyrighted works."

If, as we all hope, the DMCA has fatal flaws, then it leaves a gaping
hole in this argument.