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

[microlenz(at)earthlink.net]

There's a couple of problems here....
On 9 Jan 2003 at 15:43, John Zulauf wrote:

Date sent:      	Thu, 09 Jan 2003 15:43:59 -0700
From:           	"John Zulauf" <johnzu@ia.nsc.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Postage Meters and the "Right to Tinker"
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 
> 
> Michael A Rolenz wrote:
> > 
> > the other problem with .002's analogy is "how is TurboTax
> > being defrauded?" They actually are not. They are just not getting
> > revenue (the activation fee) rather than being forced to spend it (as
> > in the post office). TurboTax is in the same situation if nobody
> > activates it or if everybody cracks it.
> 
> Not quite true, and not particularly interesting.  If noone activates
> their disk, some will still be in the market for tax software and might
> (upon further review at an online, or retail store) purchase TurboTax. 
> Also impacted  are TurboTax's competitors, would get the rest of the
> marketshare.  If everyone cracks the product, there will be no one let
> interested in buying tax software and no one is compensated.

first off....the problem with what TurboTax did on the market or the effect 
upon its competitors is not relevant. TurboTax has
chosen to distribute copies of it's program as a GIFT. If that destroys
TurboTax or its competitors, both the law and ethics are silent upon the
rightness or wrongness of that act. TurboTax and it's competitors can return to a 
more proper business model in the future.


> 
> The loss to TurboTax is a real one not imagined.  TurboTax, as a
> copyright holder has certain limited rights.  They have provided (for
> your convenience and theirs) a means to obtain the software AND the
> right to use it.  Cracking the DRM appropriates the right to use without
> compensation. Those who crack are using the results of TurboTax's
> labors.   While TurboTax doesn't have a right to profit, they to have
> the right to control infringing copies.  

What infringing copies? TurboTax has sent them out! They are not infringing 
copies because nobody made a copy.

>Cracking the TurboTax installer

Semantics. Installer or program...that's irrelevant.

> in order to use it for one's taxes (as opposed to for research, sport or
> from boredom) is not a fair use as it affects the fair market value, and

Woops..fair use ALWAYS affects market value because without fair use they can 
always charge or file lawsuits.

> thus copies made resulting from the crack are infringing.  One cannot
> make infringing copies and then claim not to have injured the producers
> or their competitors.
> 

There are no infringing copies because TurboTax has distributed all the copies


> What is interesting to me is that the case for keyware (crack-able or
> otherwise) should be a passing issue.  With increase bandwidth and
> decreasing cost of production of individually encrypted discs the life
> span of these vulnerable distributions is very short.  I'm starting to
> see small market software delivered on CD-R.  Add unique per-disk 1024
> bit AES encryption (just 39.95 buys you the key) of the install files
> and the whole issue evaporates.  Maybe a few people would share a given
> key by cracking the online-documentation-and-help-duplicate-ID checks
> (like StarCraft checks ID's on Battlenet) but the actual risk of mass
> leakage of a master key just dies and with it the DMCA controversy.
> 

Agreed. Regardless of what happens here strong encryption is a fact. The real 
question is how the balance of copyright vs the needs of society is struck. The 
use of encryption in the dissemination of copyright material (and the ideas 
contained therein) alters that balance and IMHO eliminates it with DRMs.
> .002
>