Re: [dvd-discuss] Postage Meters and the "Right to Tinker"

["John Zulauf" <johnzu(at)ia.nsc.com>]

Richard Hartman wrote:

> 
> They sent me -- unsolicited -- a working version of TurboTax.
> Working, that is, if I manage to bypass the DRM.  I do, however,
> own the program.  Or are you suggesting that all those licensing
> agreements that state that the company really owns all software
> are valid?

Of course the software company owns the software, if by that you mean
that they hold the copyright.  You own a copy of a installer disk that
when supplied a key will install TurboTax.  Do you have the right to
inspect the contents of that disk, sure.  Can you make fair use
including security analysis -- of course. Remember however, that fair
use is limited to copies that don't effect the market value of a work. 
Circumventing the security of your TurboTax installer (and helping
others do so) certainly DOES impact the market value.  Two
possibilities:

(1) You don't circumvent.  You either pay the offered price to purchase
your RTU or not.  Market value is reflected in that choice -- if the
product is worth the price to you, you pay that price.

(2) You do circumvent.  You don't pay the purchase price.  Effective
market price for an RTU is zero (or near that), as the replacement good
(the crack) is priced at zero.

Market price is dependent on the value of circumvention (0 or 1).

The crack is thus not fair use.  In summary, you own the installer disk
and may make any ordinary or fair use of it.  Circumventing the DRM
isn't a fair use as it adversely impacts the market value of the work.
 
> If so, then the MPAA really owns that copy of "Die Hard" too
> and I don't have the right to bypass _it's_ DRM either . . .

They don't own the copy you bought clearly.  But they do still retain
many rights regarding that copy and your use of it.  You can't make
infringing copies. You can't publicly perform it, and likewise for rest
of the LIMITED (hello MPAA!) rights of the copyright holder.

As for CSS as a DRM -- feh!  I've never accepted the Corley courts blind
acceptance of any scrambling as DRM.  This is an old argument, but any
DVD player I can buy on the open market in the United States will play
that DVD.  If that's DRM I'm a flying purple people eater.  The key in
the player didn't come from the copyright holder or by their authority
-- and thus it just doesn't count.  CSS is a pretext to get mfg's to
agree to a set of functional constraints on DVD players and that is
all.  A DRM exists only to ensure that only purchasers of a copy of a
work are allowed to make use of the work.  Anything beyond that is
copyright abuse.

In any case no DVD, whether bought at the store or sent unsolicited,
requires me to go back to the copyright holder for anything, regardless
of my circumvention of CSS.  Two possibilities:

(1) I don't circumvent CSS.  
I don't have to pay anything to the rights holder to access the disk
I've purchased or that was sent unsolicited.

(2) I circumvent CSS. 
I don't have to pay anything to the rights holder to access the disk
I've purchased or that was sent unsolicited.

The market price of the DVD is not dependent on the value of
circumvention. Thus circumvention of CSS is independent (orthogonal) of
the rights of the copyright holder.

In fact I would argue that as a circumvented DVD has more uses,
circumvention <em> increases </em> the value of a published media. 
Clearly a copy protected CD is worth $0 to me -- unless a easy to use
circumvention is available.   The opposite is true of the TurboTax
keyware.

> 
> > They haven't
> > sent you (without circumvention) sufficient information to use
> > TurboTax.  You are extracting the a right to use without
> > payment to the
> > rights holder.  Circumvention changes the disk from a coaster to a
> > useful valuable product,
> 
> ... and without circumvention (DeCSS) then Jon
> only had a coaster that he couldn't watch on his
> Linux box ...

That because of the screwed-up concept of "authorized devices" vs.
authorized persons.  He owned the DVD's and a DVD-CCA license player (or
had access to one) and thus was and is an authorized person. 
Circumvention of the player restrictions did nothing to alter that. 
Again his choice to play on Linux PC or Samsung DVD player didn't affect
the rights of the copyright holder, or the revenue derived on their
copyright holdingz (except perhaps in a positive way... i.e. he bought
more DVD's).

> 
> The situations are still parallel as far as I can
> see, with the possible exception that CSS is not
> a true DRM (since it does not implement authentication
> and authorization) and hence should be excluded from
> protection by DMCA.

This and the impact on the rights holder are critical elements to the
difference.

> 
> >and a replacement good for any full
> > version of
> > the software.  This is right to license is the "good or
> > service" of the
> > software company, and circumventing (prior to first sale)
> > infringes this
> > right.
> >
> > Can we agree that the TurboTax keyware disk mailed to Richard
> > is not the
> > complete product as-is?
> 
> No.  It's all there on the disk.  It's just scrambled a bit.
> If I manage to unscramble it, then it's all there.

It's also all there on their corporate network, all you have to do is
get on it.

> 
> >One must add authorization "sauce" (true or
> > forged) to make it so.
> 
> Same w/ CSS, no?

No. Their is no authority from the rights holder on the DVD player
AFAICT.


> >The unsolicited good is only the installer disk
> > "as-is" (and not a functioning copy of TurboTax).
> 
> And "Die Hard" is only on the DVD disc, and not
> useful until it is rendered on a display device
> (TV, computer).  The rendering process requires
> the application of a key -- same as the TurboTax
> installer.

But any commercially available DVD player will play "Die Hard", while
any commercially available PC would need a crack of the TurboTax
installer disk.


> If I buy your argument for TurboTax then I also
> have to agree that I "own" the "Die Hard" on that
> little silver disc, but the only thing I can watch
> without a licensed player is my own reflection on
> the surface . . .

Ones a DRM, one isn't.  
One protects the market value of a work, one doesn't.
One requires authority from the rights holder, one doesn't.

Put a fork in it or we'll just have to agree to disagree.

> 186,000 mi/sec: not just a good idea, it's the LAW!
for gravity to... that just in from the field, it's been measured.

.002

I'd invoke Godwin's Law to end the thread were it not for Quirk's
Exception.
http://www.faqs.org/faqs/usenet/legends/godwin/