Re: [dvd-discuss] Draft of upcoming article

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

Wait, it is a defense against infringment because a fair use doesn't
infringe.  Self defense is a defense against a charge of murder, because
self-defense is not murder.  Further "Zoo's Five Words" (ZFW) by
bringing a requirement for purpose of infringment bring along with it
the defenses against a charge of infringement.

I still think the ZFW would provide sufficient defense for owners of
legitmate copies, researchers, free speech, journalism and the like. 
Now... if you want to publish a software equivalent of hacked "smart
cards" then your still not safe.  However, with the CSS debacle, any
"high value content protection" (as the industry likes to call it) is
going to have a user specific hardware component (such as a smart card)
-- this would mean that NO software (except one that actually bypasses
the HW) would be liable.

Now, having said that it is soon to be all moot anyway.  With "DRM O/S"
patent as a guide one can imagine a fully secured data path within a
computer including encryption/decryption on *every* datapath.  This
leaves the external paths (HDCP style protection) and telecine/"hook the
leads to the CRT drivers" level attacks, with watermarking to guard here
from all but the commercial pirates.

The *most* frightening aspect of the DeCSS appeal is the narrowing of
"fair use" -- gone is the multi-part test, gone is the prior "at
least... the ability to quote the original" standards.  Somehow fair use
of multimedia has devolved to an ability to describe.  How one can then
make an academic study of "block encoding" techniques or write an
interest papering such as "Bandwidth optimization: a study of encoder
usage in modern film delivery techiniques"  (sounds dry, but I've love
to see it) without actually inspecting both the stream and the results
accurately.  How about a simpler more mass market sort of article in
"High Fidelity" -- "Video Decoder accuracy and error rates-- are $79 DVD
players as good as $799 models" (the answer would be no of course, it IS
High Fi. magazine, home of the green magic marker "bit error reduction"
adverts).  Hmmmm, maybe a lawsuit from Consumer Union?

It is as if (in the aftermath of Guttenberg) only hand copied content
was considered fair, and the study of the kerning and typography (vital
elements serving free speech interest) were forbidden.  How to make the
court se this?

.002

Richard Hartman wrote:
> 
> Darn, you're right.  Fair use is not something outside
> of infringement, it is a _defense_ for infringing.
> 
> Shoot.
> 
> --
> -Richard M. Hartman
> hartman@onetouch.com
> 
> 186,000 mi./sec ... not just a good idea, it's the LAW!
> 
> > -----Original Message-----
> > From: Jolley [mailto:tjolley@swbell.net]
> > Sent: Friday, December 14, 2001 4:53 PM
> > To: dvd-discuss@lweb.law.harvard.edu
> > Subject: Re: [dvd-discuss] Draft of upcoming article
> >
> >
> > How do you define "copyright infringement"?  I just read an article in
> > "Information Outlook" (a Special Library Association magazine) that
> > seems to define copyright infringement as reproducing a
> > copyrighted work
> > by someone other than the copyright owner.  This includes
> > reproductions
> > that are fair use.  The article didn't associate copyright
> > infringement
> > as an illegal activity.  It could be legal.
> >
> > The article did say that publishers are increasingly calling copyright
> > infringement "theft" or "piracy".  Perhaps these six words would be
> > better - "for purposes of theft or piracy" - however those
> > are defined.
> >
> > Richard Hartman wrote:
> > >
> > > It might be nice to add on a section that covers the
> > > remedy suggested time and time again.  To "fix" the
> > > DMCA (or at least a 90% fix) would require the addition
> > > of five words: "for purposes of copyright infringement".
> > >
> > > That is "No person shall circumvent a technological measure"
> > > should be "No person shall circumvent a technological measure
> > > for purposes of copyright infringement".
> > >
> > > That, and the "trafficking" sections ... after all, if you
> > > can legitimately bypass a technological measure for fair
> > > use purposes, then the tools used to accomplish this must
> > > be available.
> > >
> > > --
> > > -Richard M. Hartman
> > > hartman@onetouch.com
> > >
> > > 186,000 mi./sec ... not just a good idea, it's the LAW!
> > >
> > > > -----Original Message-----
> > > > From: Andy Oram [mailto:andyo@oreilly.com]
> > > > Sent: Friday, December 14, 2001 6:03 AM
> > > > To: dvd-discuss@lweb.law.harvard.edu
> > > > Subject: [dvd-discuss] Draft of upcoming article
> > > >
> > > >
> > > > Since I haven't been on this list very long, it may seem
> > > > presumptuous to post something for review. However, I got a
> > > > bit of help beforehand and have been following copyright
> > > > issues for a long time. If you have time, please take a look
> > > > at this article (which doesn't reflect the past 24 hours'
> > > > worth of news):
> > > >
> > > >     http://www.oreilly.com/~andyo/professional/ruling_2600.html
> > > >
> > > > I will probably publish it either in Web Review
> > > > (http://webreview.com/) or O'Reilly Network
> > > > (http://www.oreillynet.com/), but not for several
> > > > weeks. There's plenty of time for corrections.
> > > >
> > > >
> > ----------------------------------------------------------------------
> > > > Andy Oram  O'Reilly & Associates, Inc.        email:
> > andyo@oreilly.com
> > > > Editor     90 Sherman Street                       voice:
> > 617-499-7479
> > > >            Cambridge, MA 02140-3233                  fax:
> > 617-661-1116
> > > >            USA
> http://www.oreilly.com/~andyo/
> > > Stories at Web site:
> > > The Bug in the Seven Modules     Code the Obscure     The Disconnected
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> > >