[dvd-discuss] Re: What does "availability for use" mean?

[Seth Finkelstein <sethf(at)sethf.com>]

Ken Arromdee wrote:
> I'm sorry, I still don't understand this.  Item 2 is: 
> 
> "(ii) the availability for use of works for nonprofit archival,
> preservation, and educational purposes;"
>
> According to your explanation, this refers to whether companies
> would make more or fewer works of these categories available to
> users in the future.

	OK, I understand what you're asking, and I've had to work
through it myself. There's two different but interlocking questions here:

     (i) the availability for use of copyrighted works;

	This is an *existence* question. It's asking, given the DMCA
circumvention prohibition, are more or fewer works being published? For
example, this is about the claim that CSS encryption was necessary to
protect the DVD business model.

	For censorware, this time around, the censorware companies are
certainly going to claim that encryption supports their business
model.  I'm going to reply that such companies were doing business way
before the DMCA was passed, and so the DMCA cannot be a critical
component to their business model, plus I've got evidence to that effect.

     (ii) the availability for use of works for nonprofit archival,
     preservation, and educational purposes;

	This question only *looks* like a repeat of the first question.
In fact, it's a very different question. It's asking *once* *the*
*works* *are* *published*, what are the effects of the DMCA on certain
traditionally accepted limitations on copyright?

	I think, though this is not stated in the documentation, that
this question is basically asking about the effects of the DMCA on
section 108 of the copyright law, which is about permission for
"library or archives" being able to copy works for archiving.
http://www4.law.cornell.edu/uscode/17/108.html

	So for censorware, I'm making a variant of the "dead-media"
argument. It's important to *access* the material currently. for
archiving in human-readable form, because software versions tend to
become obsolete very quickly (and by the time the obsoleteness
exemption might apply, it's in essence too late). Archiving an
unreadable encrypted file isn't of much use.
	
	For DVD's this is a tricky point, as remember, the encryption
is not about *copying* so much as *accessing*.

   "Section 1201 does not prohibit libraries and archives from the
    conduct of circumventing copy controls.  Therefore, it is
    difficult to understand how an exemption from the prohibition on
    circumvention of access controls would resolve this problem."

	Clearer?

-- 
Seth Finkelstein  Consulting Programmer  sethf@sethf.com  http://sethf.com
Anticensorware Investigations - http://sethf.com/anticensorware/
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