Re: [dvd-discuss] 1201(b)

["Mark Hore" <baerwulf(at)echidna.id.au>]

What would happen if a rougue copyright holder were to specifically permit
decryption by the allgedly circumventing device? that seems to fullfil the
"Not authorised by the copyright holder section of 1201

Entropy: Not just a fad, it's the future!

----- Original Message -----
From: "Ernest Miller" <ernest.miller@aya.yale.edu>
To: <dvd-discuss@eon.law.harvard.edu>
Sent: Monday, February 18, 2002 10:42 PM
Subject: Re: [dvd-discuss] 1201(b)


> This issue isn't clear, but available precedent seems to indicate that
> courts would heavily favor the copyright holders in most cases.
>
> ----- Original Message -----
> From: "Michael Columbus" <columbmt@notes.udayton.edu>
> To: <dvd-discuss@eon.law.harvard.edu>
> Sent: Sunday, February 17, 2002 4:24 PM
> Subject: [dvd-discuss] 1201(b)
>
>
> > Suppose an specific encryption device, which controls a "right of a
> > copyright owner" , is employed on several different types of works. 60%
of
> > the works the device is employed on currently are in the public  domain.
> 40%
> > of the works the device controls access to are subject to copyright
> > protections. Company A develops, markets, and sells a product which
> > circumvents the protective technology. The company's primary purpose for
> the
> > development of this product was to allow the owners of the public domain
> > materials to allow "full use" of those public domain materials. Does
this
> > company violate 1201(b)?
> >
> > This differs from the Elcom case because it isn't fair use at issue. The
> > issue is: when does 1201(b) prohibit the development of a circumvention
> > technology when the circumvented technological device protects copyright
> > owners rights as well as the rights the consumer has to public domain
> > materials, and when this circumvented technology is employed on a
> potpourri
> > of materials in the marketplace?
> >
> > 1201(b)(1)(A) provides:
> >
> > "is primarily designed or produced for the purpose of circumventing
> > protection afforded by a technological measure that effectively protects
a
> > right of a copyright owner under this title in a work or a portion
> thereof."
> >
> > Company A's product is "primarily designed" to circumvent protection of
> > public domain material. Essentially, the product enables the consumer to
> > make full use (not fair use because the material is in the public
domain)
> of
> > the material. Although company A's product is capable of circumventing
> > protection which protects the copyright owner's rights, this is not its
> > "primary design". Can company A be held liable? If not, does
> interpretation
> > of the "primarily designed" language depend on the proportion of
> copyrighted
> > work and public domain work in the marketplace which is protected by the
> > technological measure? For example, if 100% of the material, protected
by
> > the technological device, in the marketplace was public domain, I don't
> see
> > how any circumvention technology could be in violation of 1201(b). What
if
> > the mix was 90% (public domain)/ 10% (copyrighted work)?
> >
> > It seems to me the argument for a violation of 1201(b) becomes stronger
> when
> > the probabilities that the technological device will be used for
> prohibited
> > purposes rises (i.e. 95% (copyrighted works)/5% (public domain)).
> >
> > If this is the case, how will this law be enforced? Will studies be
> required
> > for every technological device to determine the public
domain/copyrighted
> > work ratio? How will companies know what is illegal or not illegal?
>
>