Re: [dvd-discuss] Re: nimmer

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

Two points:

1. Unauthorized derivative work is infringement....while a purist (such as 
nimmer) may argue that, I believe that unless the work is published 
commercially, the matter is beneath the recognition of the court (what's 
the latin phrase?). Even for private publication, I also believe the 
matter is beneath the court. (By private publication, I arrange to publish 
an un authorized derivative work and give it away to selected people under 
the contract that the work be only for their private use. This has been 
done before.)

2. Was the DMCA needed to fight NAPSTER? No. They seemed to keep bringing 
in NAPSTER to bolster the DMCA.




Bryan Taylor <bryan_w_taylor@yahoo.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
11/05/01 04:25 PM
Please respond to dvd-discuss

 
        To:     dvd-discuss@eon.law.harvard.edu
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        Subject:        Re: [dvd-discuss] Re: nimmer



--- Eric Seppanen <eds@reric.net> wrote:

> 1. Modifying DIVX software to bypass designed-in limitations would be
>    illegal because:
>   A. You would need to copy the software to do so, and that would be
>      copyright infringement, or

Well, he neglects the possibility that you write your own from scratch, 
but
other than that it is a good point. Suppose DeCSS wasn't original but was 
in
fact a patched version of the XingDVD player. I think Xing would not be 
happy
with this. See the next answer.

>   B. You would need to create an "unauthorized derivative work" that
>      is assumed to be illegal in an unspecified way.

Yes. Xing would sue the crap out of you. "Space shifting" for personal use
isn't going to save you if you make a derivitive that's got important 
content
differences.

> 2. The "impropriety" of breaking "anti-copying technology" will be
>    stopped cold by the DMCA.

He obviously thought the DMCA would be different than it ended up being. 
If the
DMCA had punished distribution of decrypted works and punished possesion 
of a
decrypted work without owning the original, it would be a reasonable law.

> These arguments are given bolster claims that contract law is an
> unnecessary addition to the balance of rights.
> 
> I see several problems here:
> - reverse-engineered DIVX software might be possible, evading 1.A and 
1.B.
Forgive the guy for not realizing this. He's not a programmer.

> - modifying your own copy of software might be legal, evading 1.B.
It might be impossible to enforce this, but "space shifting" is about as 
far as
you can reach in this direction. The theory there is that the underlying 
media
isn't part of the work itself. 

> - it's not explained why the "unauthorized derivative work" in 1.B is
>   illegal.  Is he assuming that a hacker distributes actual hacked
>   binaries?  Not very ingenious... any good hacker should be able to
>   figure out better ways that aren't (at least obviously) copyright
>   infringement.

That is one of the statutory rights of a copyright holder. "To make an
unauthorized derivitive work" whether or not you distribute it is 
infringement.
You have a fair use defense, but to apply a crack hack, you'd better be 
trying
to publish papers on computer security or the like.

> - His article demonstrates that rights-eroding shrink-wrap contracts
>   aren't necessary.  One of his arguments depends on the rights-eroding
>   DMCA-- that's not exactly forward progress.  If you remove the DMCA 
>   from the equation the argument falls apart, because the Divx business 
>   model won't work if there's a way for free viewers to exist.
> 
> I would actually like to see the the article succeed in its goal; 
> shrink-wrap contracts bug me as much as anyone.  But the logic in his
> Divx example just doesn't cut it in my opinion.  I fail to see a way
> that Divx's model could gain fair copyright protection without the
> problems we see with the DMCA and with shrink-wrap contracts.

Well, its obvious the DMCA didn't turn out to be what he thought. It is a 
bad
law because of it's absurd overreaching. There certainly are some more 
modest
steps that could have been taken that would adequately arm the MPAA to 
fight
Napsterization of DVD's in the courtroom. 

As it is, now everybody thinks the MPAA are a bunch of assholes and they 
ignore
the law and feel good about doing it.


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