Re: [dvd-discuss] COMDEX speech

[microlenz(at)earthlink.net]

On 21 Nov 2002 at 22:28, Jolley wrote:

Date sent:      	Thu, 21 Nov 2002 22:28:38 -0600
From:           	Jolley <tjolley@swbell.net>
Subject:        	Re: [dvd-discuss] COMDEX speech
To:             	dvd-discuss@eon.law.harvard.edu
Organization:   	Southwestern Bell Internet Services
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> If a work can't be copied then it doesn't need copyright protection.

And so is outside the copyright system and need not be discussed further. It 
does not promote the science or the arts for the public but only the few who 
have the keys...rather reminds me of the secret ABEND codes for IBM 370s...I 
was lucky enough to be told of the file and have access to it 20 yrs ago...I 
loved looking up the contents of register 8 and looking up the cause- kinda 
like using the Ovalten decoder ring of Ralphy in "Christmas Story". THis 
becomes a private contract between the creator and the recipient - a Trade 
Secret.

> 
> A work protected by a DRM preventing it from being copied doesn't mean
> that the work shouldn't be protected by copyright after the DRM is
> broken.

Why? They wanted to do better than the bargain they could have gotten by 
copyright and lost. They can't repudiate their choice. ESTOPPEL.
They chose to take a chance and lost. Too bad. Vegas doesn't give refunds when 
you crap out and why should the copyright system? 

> 
> A work protected by a DRM in one type of media does not negate the
> protection of copyright if published in a media without DRM.
> 

Why not? This confuses the media with the work itself. The work is copyrighted 
and so must obey copyright in ALL distributions. To not do so is to invalidate 
the copyright which is is on the WORK.

> There shouldn't be any obligation to make a work easy to copy in
> exchange for copyright protection.
> 

This is specious. The argument is not that it is easy.

> Being copiable is only a necessary condition for a work to be
> copied.  It has nothing to do with entering the public domain.
> 

NOt so. If a work is in the public domain, it can be copied. Right...If it 
cannot be copied then it is NOT in the public contrapositives are logical 
equivalent statements. To not accept the latter statement is to negate the 
former.

> What is the point in your statement below?  It sounds like you want
> to punish or deny copyright from an author (publisher) that tries
> to use a DRM.  

Punish no. Deny YES! DRMs violate copyright fundamentals from a societal and 
legal perspective. What is copyright but a type of contract between the 
government and the creator (let's forget copyright as a natural right. That's 
BS. If there is no government, a "natural right" exists only if you can 
exercise it by brute force.)

As a contract:

What does the creator give initially. They create the work and distribute it. 
What do they get? A near monopoly on it. Other than fair use they can prevent 
anyone from making infringing copies. They express legal service. If they 
detect someone is infringing all the need to do is present proof of copyright 
and the onus shifts to the defendant to prove not guilty. In the case of 
egregious infringement, they get investigative help from law enforcement 
agencies (detectives investigate using public funds). Public prosecutors try 
their cases (saving them legal fees). Defendants found guilty are sent to 
prisons run by using taxes. All of this happens (now) for the lifetime of the 
creator, spouse, children, grandchildren and several more generations. 

Pretty rosy isn't it? What's more? What's been left out here?
The consideration on the government - the work enters the public domain at the 
end of copyright. So what does that mean?

At the end of copyright ANYONE can use the work. ANyone can create derivative 
works. Anyone can reprint/republish/redistribute/reuse/whatever! No fees. No 
royalties. No negotiation. Nothing. SO how can they do that? From ANY of the 
remaining copies that are still in existence. What's more it must be able to 
occur from EVERY copy that is still in existence. (Historically the centralized 
libraries antiquity were subject to destruction.). Copies distributed decades 
before that interfere or prevent this negate this contract and so have breached 
it.

To permit DRMs initially is to permit the fulfilment of the contract in 70 yrs -
 another reason for overturning CTEA. Who can wait 70 yrs to see if the 
contract for copyright has been faithfully fulfilled or if the 
creator/distributer has breached the contract intially.

>I think a positive purpose of this discussion group is
> to promote the right to access works (copyrighted and public domain)
> protected by DRM schemes.  

Public Domain works cannot be protected by DRM by definition. Copyright works 
that cannot enter the public domain because of DRMs are not copyrighted and so 
deserve no legal protection since they are self help in advance of legal 
adjudication.

>The real battle here is do we have the right
> to reverse engineer a DRM scheme? 

Yes. Other than from JackBoots I havne't read any discussion otherwise.

> Do we have the right to discuss DRM
> protections?  

DOes the FA still apply? Yes. Ditto.

>Do we have the right to bypass a DRM scheme in order to
> read our own property? 

Yes. Ditto.


> These rights should be guaranteed by the
> constitution.  These rights should be a "no brainer".
>

NO argument there. The question is what arguments to formulate and hone to make 
this a "no brainer" to others. 
> Michael A Rolenz wrote:
> > 
> > Being copiable, is a necessary condition for the work to enter the
> > public domain at the end of copyright. If it cannot be copied, then it
> > cannot enter the public domain and so cannot also be given the
> > privledge of copyright.
> >