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RE: [dvd-discuss] Re: TurboTax for free?

> -----Original Message-----
> From: John Zulauf [mailto:johnzu@ia.nsc.com]
> There seem to be a few differences, though I'm not sure they are
> entirely compelling.  First a disclaimer.  
> There is clearly a difference between that which is ethical and that
> which is legal.  Ethically, one should respect the intent of 
> the company
> and not attempt to bypass the key.  

Absolutely.  I only bring this up because of the
parallels to the DVD protection issue.

> (2) You probably cannot install TurboTax (even if someone sent you a
> valid key) without agreeing to the EULA.  I would be quite shocked if
> the EULA doesn't include some language requiring you to 
> assert that you
> are in possession of a legal acquire right-to-use.  Given that  the
> software you were sent does require an additional transaction, the
> recent EULA voiding case probably doesn't apply.  The free 
> polycarbonate
> disk doesn't look or feel like a sale, as clearly it is noted that you
> need an additional transaction to use the product.

Ah, but here is the key issue: ownership.  In the 
DVD case, ownership is conveyed by "first sale".  In
this case the argument is that ownership was conveyed
as a gift.  The CD was sent to me unsolicited, and
existing case law establishes that as a gift.

No, it does not feel like a sale ... but the end
result -- ownership -- is the same.  (Or, that's
the argument, at least.)

> DVD's don't have a EULA, except to say "private home use" (See **1) 

Clickwrap agreements are not enforcable, are they?

> (3) The TPM protecting TurboTax on the disk is clearly pre-first-sale,

I disagree on "clearly".  Yes, there was no sale, but
there _was_ a transfer of property as a gift.  That is
the crux of the issue.

As far as I can see the only protection it has is
the DMCA, exactly the same as the DVD.

> CSS is clearly post-sale.  (What they have in common is that they both
> show that access and copy controls are orthogonal, the TurboTax is key
> protected, but infinitely copiable, as is the DVD)
> (4) There is no "reasonable person" expectation that a free CD with
> "instructions say that to access it I need to have internet 
> access and a
> credit card".  You yourself stated: "Obviously this is a protected
> program, with the intention that I pay them before it is unlocked."

You may have something with the "reasonable man" argument.
I'll have to think about that.  The question I have there
is just how much does this standard count for under the law?

> The "reasonable person" assumption for a DVD is that if you stick it
> into a DVD player it will play, without having to spend $29.99 for a
> key.  This is of course why Judge Kaplan is just flat wrong about CSS,
> but that's an old argument.  CSS isn't DivX, and never was -- 
> it doesn't
> protect any *valid* right of a copyright holder. The 
> Paramount case got
> rid of the notion of the right of a copyright holder to control the
> choice of the projector (player).

-Richard M. Hartman

186,000 mi/sec: not just a good idea, it's the LAW!