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

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

Preface:
I'm concerned that we as a group can't keep the distinction of the
TurboTax and DVD TPM's clear.  It is this very conflation that allow the
MPAA and RIAA to position DeCSS as theft.  Clearly DeCSSing a DVD is a
fair use (subsequent copying or share may or may not be fair, but the
DeCSS clearly is).  Why?  The good old "four part test."  DeCSS passes,
cracking keyware (or shareware, or crippleware), whether mailed on CD or
posted on www.downloads.com doesn't (See note 0, and below).

Folks if we can't keep this straight, how do we expect congress to?  And
if Congress is confused, they'll much more likely legally protect BOTH
rather (or the wrong one) as opposed to only right one.

Richard Hartman wrote:

> If it weren't for that 'gift' aspect, then I wouldn't
> have any problems w/ the idea that hacking past the
> DRM is theft of their product.  

The gift is a of copy (and thus the right to use) an fully functioning
installer disk that includes most of the components of a working
TurboTax.  In the EULA and on the packaging are the terms of that
right-to-use.  Any use outside those terms is only legitimate if it
falls under the general rubric of "fair use."  

Supplying your own authentication mechansim to bypass the installer's
isn't a fair use of (drum roll) not the installer disk but of the
TurboTax components on it.  You own a copy of these TurboTax components,
and may make any fair use of them you like (see Note 1).  Bypassing the
authentication method (without obtaining a right-to-use in order to use
the product a tax calculator) isn't fair, because it impacts the fair
market value of the those files. 

> For example, if I
> made a copy of that CD and gave it to you, that would
> be theft (although if I gave you the original, it
> would merely be a transfer of property...)

This is where I think you have it exactly backwards (and where this
differs from "Die Hard").  TurboTax would only be to happy for you to
distribute copies of their installer CD to all of your friends (See note
2).  The fair market value of this give away being $0, this is certainly
fair use as the market value of the installer disk certainly will not
decrease.

If you crack the authentication of the installer and make the infringing
copies of the TurboTax components supplied, THEN that is infringement
(not theft, but I knew what you meant). 

.002

(Note 0) Cracking the TurboTax installer (regardless of what we think of
p-spam) clearly isn't fair use, not only locally in the impact on the
value of retail versions of the TurboTax files, buy also globally on the
impact on the market value of all tax software -- and antithetical to
progress.  Remember, every warez Photoshop copy is users subtracted from
The Gimp, Ulead, or others Adobe's competitors.

(Note 1) You could the mass produce the disk as a "one time pad" cipher
keys, the way books were used in the past. You can perform any analysis
or reverse engineering of the product you like.  You can extract the
"pure factual elements" of the tax tables et. al. from the data if you
can find them.  You can even try out random numbers as keys, and even
succeed in installed the work, assuming you then uninstall the product
without use it for your taxes.  As long as your use of the installer
disk doesn't impact the fair market value of the content, have fun!

(Note 2) in fact an Amway like multilevel marketing scheme (chain
letters with CD ROMs, or P2P availability) even with commissions given
based on the distributor tree would be cheaper for TurboTax -- and choke
the net. Actually if one doesn't lose sight of the pre-sale, post-sale
dichotomy, it would be a great poster child for P2P enabled business
models.

Compare and contrast this with "Die Hard".  If you receive an
unsolicited copy of "Die Hard" on DVD.  Any copies for friends use that
$4K authoring DVD-R writer you happen to have lying around, or any P2P
sharing of even the CSS encrypted VOB's would raise the copyright
holders ire, not garner praise.