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Re: [dvd-discuss] COMDEX speech

On 23 Nov 2002 at 15:02, Jolley wrote:

Date sent:      	Sat, 23 Nov 2002 15:02:24 -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

> microlenz@earthlink.net wrote:
> > 
> > > 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.
> I disagree but will not discuss further since it is pointless.

The purpose of copyright is to promote the dissemination of information. If it 
cannot be copied it cannot be disseminated and does not fulfill the purpose of 
copyright. If the information cannot be retrieved then sending copies does not 
fulfil the requiremements of copyright.

> > 
> > >
> > > 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?
> > 
> I have used protected in two ways that may be confusing.  DRM schemes
> are barriers to access while copyright is a legal protection.
> Obviously you beleive that employing a barrier to access nullifies
> the legal protection of copyright.  I disagree.

> > >
> > > 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.
> Copyright should be completely independent of access right.  Isn't this
> the problem with the DMCA?  It gives a new right to authors that is
> not copyright but accessright.

Yes. The DMCA does give accessright which is not copyright and shouldn ot be 
confused with it as COngress, Kaplan and a lot of others are or want people to 
be. But where accessright destroys copyright then it can't have copyright 
protection as well. That subverts and destroys copyright.

> > 
> > > 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.
> > 
> In/out of the public domain.  Can/can't copy.  Two bits and four
> combinations.
> 1. A work in the public domain that can be copied.

As it has been

> 2. A work in the public domain that can't be copied.

THen there is no free access and so the work is not in the public domain. You 
can't HAVE a right if you can't exercise it. SO you can't have the public 
domain if you can't get to it. ANd getting to it means from ANY copy. The 
purpose of copyright is to promote dissmemnation. A work that cannot be copied 
cannot be disseminated. Otherwise, this is just hair splitting.

> 3. A work not in the public domain that can be copied.

ANd has to be copiable if it will enter the public domain eventually. If it 
can't be copied it can't be disseminated when it does "enter" the public 
domain. If it cannot enter than a fraud had been committed. Do you think that 
Hollywierd will give over the masters or films or recordings at the end of the 
copyright period. The piano rolls case of the early 20th century <sigh> has 
been criticized but I wonder if those justices didn't understand something more 
than we do today. Those rolls are LESS than a book or sheet music. They require 
more technology to understand and are more perishable.

> 4. A work not in the public domain that can't be copied.

That's called a private contract. That's outside copyright.

> I think a work can be in any of the above conditions.  A work in the
> public domain is independent of whether it is copiable because of
> conditions 1 and 2.

NOt so.

> > > 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.)
> > 
> DRMs are access control.  They shouldn't be part of copyright.  Neither
> in the DMCA or as you propose.  DRMs violate copyright fundamentals
> because they aren't a copyright.

YES they are access controls. They must be subordinate to copyright and not 
superior to it.  But access controls INTERFERE with the function of copyright. 
As such Requirements for copyright are in the Constitution. The implementation 
of it cannot subvert the requirements of it. 

> > 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.
> Not after the fact.
> > 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.
> > 
> Public domain works can have access protection via DRM.  Should it
> be illegal to bypass the DRM?  The answer is no.

Public Domain works belong to EVERYONE. As such noone may controll them. So 
there is NO protection. NO DRM is legal. PERIOD. The DRM is preventing ACCESS 
to a work I own. Yes I own them and so do you and so does everyone else. The 
fallacy is to believe that the physical medium has ANY importance for works in 
the public domain. It does not. The work is owned. To turn the DRM around. 
JackBoots like to talk about DRM as being locks. Well for works in the public 
domain, a DRM is comparable to putting alock around a public park and saying 
"this is my private space. you cannot enter or I shall have you arrested"

> If a work is not copyrighted because there is a DRM, do you mean
> it should be in the public domain?  Or, is the work in some kind of
> limbo between copyright and public domain?

It's only got protection until the DRM is cracked...after that...it's in the 
public domain. Having chosen to NOT fulfill the requirements of copyright, they 
are estopped from then claiming copyright protection later. 

Copyright is a give and take. the Take is considerable and the give is 
relatively little...or was before the 1976 copyright act and become worse in 
1998 with the CTEA.