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

["Richard Hartman" <hartman(at)onetouch.com>]

> -----Original Message-----
> From: John Zulauf [mailto:johnzu@ia.nsc.com]
...
> Okay, quadruple indenting... ( the perl to convert a regular thread to
> this is below (and yes it does look like 'C' -- sorry Larry)
> 
> Also, I'm doing my best at a DA argument I'm not fully convinced of
> (legally), I still think that ethically, one doesn't take advantage of
> fools, even fools with lots of money.
> 
> Richard Hartman wrote:
> RH: >...
> JZ: >>>>(3) The TPM protecting TurboTax on the disk is clearly
> JZ: >>pre-first-sale,
> RH: >>>
> RH: >>>I disagree on "clearly".  Yes, there was no sale, but
> RH: >>>there _was_ a transfer of property as a gift.  That is
> RH: >>>the crux of the issue.
> JZ: >>
> JZ: >>There is transfer of property on the full functioning "install
> disk".
> JZ: >>TurboTax won't function without (a) key not currently in your
> JZ: >>possession
> RH: >
> RH: >The DVD won't function witout the key that was
> RH: >issued to the player manufacturer . . .
> 
> Ok.  However, since you don't have to get that key from the 
> provider of
> the DVD (through an additional sales transaction) your reciept of an
> unsolicited DVD requires no additional transaction with the copyright
> holder (unlike Turbo tax).  Whether the CSS system on your 
> DVD is valid
> doesn't impact that the sender has given you a license for 
> home viewing.

1- You either have the key to unlock CSS, or you don't.

2- The purchase of that key is included in the purchase
of a sanctioned DVD player.

3- Without the purchase of that key (i.e. without the
purchase of the sanctioned DVD player) you do not 
have the right to access the DVD content.

(note: all of the above per DVDCCA and MPAA reasoning,
and do not necessarily reflect my own views)

4- accessing the DVD content through DeCSS bypasses
the lack of the key, allowing you to access content
that you "own" (due to first-sale of the DVD).

IOW, we are concerned with the ownership of the medium
on which the content is transferred -- in this case, the
DVD -- and not the ownership or legitimate transfer of
the key.

In the DVD case you own the media due to first-sale
transaction.  In the TurboTax case you own the media
due to the "unsolicited gift" precedent.

In neither case do you own the key.

In the DVD case you accept bypassing the key to access
content on a disc that you own.

I still don't see the difference (legal, not ethical)
in bypassing the key for TurboTax since I own that
disc as well.

> 
> RH: >
> JZ: >>or (b) modifying the contents (creation of a derivative work)
> JZ: >>to remove
> JZ: >>requirement (a).
> RH: >
> RH: >Likewise (aka: DeCSS).
> 
> You don't have to modify the DVD to use a DeCSS based player.  No
> modification of the DVD is needed regardless of the validity 
> of the key
> you possess.

You don't have to modify the CD to use a "TurboTaxBreak installer" 
either.  Both situations postulate a software tool to circumvent
the protections put in place by the producers of the discs.

> 
> RH: >
> RH: >>As the key is only transferred upon a sales event,
> RH: >
> RH: >As the key is only transferred to a licensed DVD
> RH: >player manufacturer . . .
> 
> Separate from the sale of the DVD.  The key to install a full 
> version of
> TurboTax is not provided with your functioning install disk.  

The key to play the DVD is not provided with the DVD
either.  

Yes.  The transfer of the key is separate.  In _both_ cases.

And in both cases it is the absence of the legitimately
aquired key that the PBM (Protection Bypass Mechanism)
addresses.

>Nor is
> their any presumption by the provider that you have access to a key
> aside for sending them $.  

Nor is their any presumption on the part of the MPAA that
you have access to a key aside from purchasing a sanctioned
DVD player.

(I still don't see any differences in the situation . . .)

>A DVD provider presumes you have a key in
> your possession, and couldn't provide one even if asked.

If they presumed that you had a key in your
possession, then Jon wouldn't have been prosecuted ... 
wasn't "playing DVDs without a key" essentially
why he was put to all this bother?

> 
> RH: >
> JZ: >>action (b), the modification of the disk to remove
> RH: >
> RH: >modification of the disk?  nay, say instead "the creation
> RH: >of a device to circumvent the protection" (a la DeCSS) . . .
> 
> fine, but materially the function of the circumvent differs.  In one
> case you are avoiding paying for the license to use the software.  In
> the other case you are ignoring restrictions on a third party contract
> to hide a trade secret.  

In both cases, however, you are bypassing a DRM ... which
is really all that matters to the DMCA.  I think you're
still having trouble separating the ethical issues from the 
legalities.  I'm completely with you on the ethical issue,
I just don't think that the law covers it adequately.

>Whether you use CSS or DeCSS the 
> functionality
> is the same, and the commercial transaction with the DVD vendor is the
> same.  
>
>With a TurboTax cracker, the transaction with the vendor is one
> of non-payment.

In both cases the transaction with the _key_ vendor
is one of non-payment.  In the TurboTax situation the
key vendor is also the supplier of the disc, in the
DVD case the key vendor is the supplier of the
player.

> 
> RH: >
> JZ: >>requirement (a), is a
> JZ: >>pre-first-sale circumvention.
> RH: >
> JZ: >>
> JZ: >>Q.E.D.
> JZ: >>
> RH: >
> RH: >You've just proved that Jon should've been found guilty.
> 
> If you believe Judge Kaplan's interpretation of the law.  I don't
> believe that is a valid interpretation.  

But that _is_ the interpretation you applied to the TurboTax
situation.

The only difference between the two cases is that in one
case the key vendor also supplied the content but in the
other situation the key vendor is a third party.  

Does that difference really matter that much when it comes
to whether the DMCA applies? 

When you come down to it, _both_ situations are not
legal under the DMCA ... but we're trying to get those
aspects of the DMCA overturned.  So, if that happens
then both situations would be legal unless we can come
up with something that distinguishes one from the other.


>CSS doesn't protect any right
> of the rights holder.  It isn't copy protection, it isn't access
> control.  It just shouldn't have been considered covered by the law,
> especially since it is applied in a post-first-sale way.  

Ok, I'll grant you that CSS is not an actual DRM
when you get right down to what it actually does,
but it _has_ been accepted as such under the law.

Now _there_ might be the difference that would
distinguish the TurboTax instance.  True authentication/authorization
vs. mere mechanical encryption.

> However, from
> the first hearing Judge Kaplan conflated the consent with authority
> (another old argument) and never allowed a record to be developed --
> i.e. prove that your assertion of "CSS is a 1201 TPM" is true.  The
> appeals court swallowed that conflation whole (though the appeal never
> challenged it directly) and the rest is tragicomedy. 
> 
> RH: >
> JZ: >>
> JZ: >>P.S. I reread the MPAA quote.  How can a "technical measure"
> protect
> JZ: >>against "infringing copies".  Since whether a copy is
> JZ: >>infringing or not
> JZ: >>is a matter for a four part legal test (and with the
> unavailability of
> JZ: >>AI based courtrooms (courtROMS?), all a "technical 
> measure" can do
> is
> JZ: >>prevent all copies, and since preventing all copies (post
> JZ: >>first sale) is
> JZ: >>not "a right of a copyright holder" thus the "technical
> JZ: >>measure" cannot
> JZ: >>qualify for 1201 protection.
> RH: >
> RH: >This has long been the root argument against
> RH: >technical enforcement of legal restrictions.
> 
> And the root of the legal distinction between the unsolicited DVD and
> unsolicited TurboTax.  The DVD needs nothing else from the copyright
> holder to function, 

It needs a key to function.  
Where that key comes from is a separate issue.

>TurboTax does.  CSS can't determine "authorized
> persons", the TurboTax installer can.

Now that I'll have to grant.  True authentication/authorization
checking would make a difference.

> 
> RH: >
> JZ: >>
> JZ: >>P.P.S.  The is the logical opposite the TurboTax, where the key
> system
> JZ: >>is access control (the key denotes your PC users as
> JZ: >>"authorized persons"
> JZ: >>and the passing of the key is a sales event.
> RH: >
> RH: >But if I create a circumvention device, I don't need their key.
> RH: >If I can brute-force the key, I don't need their key.
> RH: >If I use someone else's key, I don't need their key.
> 
> Except you are brute forcing a key to avoid a sales event...

Same for some versions of DeCSS ...

> 
> RH: >
> RH: >All of the above are _exactly_ as applied to CSS.
> 
> and here you are not.
> 
> RH: >
> RH: >I'm still looking for the distinction.
> 
> That's the best I've got for you.  Personally I find p-spam offensive
> and an eco-disaster.  However, I can see (even though the courts have
> not yet) a huge distinction between evading a license fee by
> circumvention, and "circumventing" use controls such that no 
> royalty or
> fees to the rights holder are effect.  It's the old "the 
> right to swing
> your fist ends at my nose" saw.  Circumventing TurboTax hits 
> the rights
> holder on the nose (though they've stuck it out far enough),
> circumventing CSS doesn't impact the rights holder at all.

Now tell the rights holder that ;-)

> 
> RH: >
> RH: >You are focussing on the passing of the key, I am
> RH: >dealing with the passing of the software itself (as
> RH: >a gift).  If you want to focus on the key you have
> RH: >to do the same when discussing the DVD vulnerability.
> RH: >
> JZ: >>The key testing software
> JZ: >>*can* discriminate (by validating the key) valid and invalid
> access
> JZ: >>(without need of a courtroom).
> RH: >
> RH: >Isn't that what CSS did?  Discriminate valid keys?
> 
> Valid keys yes.  Valid users no.  Circumventing TurboTax creates fake
> valid users.  Circumventing CSS doesn't.

Ok, I think we've got something that will hold up there.



-- 
-Richard M. Hartman
hartman@onetouch.com

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