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

["Dean Sanchez" <DSANCHEZ(at)fcci-group.com>]

John,

I apologize if I seem dense, but I haven't read an explanation as to the differentiation between ownership conveyed via a gift verses ownership conveyed via a sale.  Post first sale arguments address the rights once ownership of an product has conveyed.

Two scenarios:

Scenario #1
1.  Unsolicited product was sent to my home.  There are numerous statutes and case law supporting the fact that ownership in such a situation has be transferred to me without any remuneration necessary on my part.

2.  I either write or locate a key generator that enables me to use my 'owned' (see 1.1) copy of the disk.

3.  No other Intuit resources are necessary for me to have a fully functioning product. I use the product.

It appears to be your contention that ownership has not been conveyed in this situation, correct?


Scenario #2
1.  Unsolicited product was sent to my home.  Even though there are numerous statutes and case law supporting the fact that ownership in such a situation has be transferred to me without any remuneration necessary on my part, I send in the money for an activation key.

2.  I don't use the key Intuit sends to me, but I either write or locate a key generator that enables me to use my 'owned' (see 2.1) copy of the disk.  

3.  No other Intuit resources are necessary for me to have a fully functioning product. I use the product.


Do you think that ownership has been conveyed in this situation?  If so, ownership of what?

The only difference between 1 and 2 is I purchased a 'key', not the product.




-----Original Message-----
From: John Zulauf [mailto:johnzu@ia.nsc.com]
Sent: Friday, January 10, 2003 1:01 PM
To: dvd-discuss@eon.law.harvard.edu
Subject: Re: [dvd-discuss] Postage Meters and the "Right to Tinker"




microlenz@earthlink.net wrote:

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

The infringing copy is the the one you make when you install TurboTax
without an RTU.  The fact that it was sent to you sans key passes the
"reasonable person" test that the recipient knew or should have known
(especially with the explicit instructions on the packaging as Richard
described them), that no RTU for TurboTax was provided, only the RTU for
the installer.

> >Cracking the TurboTax installer
> 
> Semantics. Installer or program...that's irrelevant.

Correct.  Neither is fair.

> 
> > 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.

Bzzzt. Thanks for playing.  Let's look at Harper and Row v. Nation (from
http://cyber.law.harvard.edu/twiki/bin/view/Openlaw/CommonCitations)

<blockquote>
any charge of copyright infringement had to be decided by considering
the totality of the following factors: 

1. the purpose and character of the use; 
2. the nature of the copyrighted work; 
3. the substantiality of the portion used in relation to the copyrighted
work as a whole; 
4. the effect on the potential market for or value of the copyrighted
work. 
</blockquote>

What is the impact of the crack?

1. the purpose and character of the use

to avoid paying for an RTU of full copy of the product

2. nature of the copyrighted work

keyware sent unsolicited

3. the substantiality of the portion used

100%

4. the effect on the potential market for or value of

catastrophic -- especially if widely allowed.  

3 of the 4 weigh  toward infringing use with only item 2 acting to
mitigate.

> 
> > 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

You are forgetting that one copies files to install them or run them. 
These copies are "ordinary use" (a Lessig term) when an RTU is present,
and infringing otherwise.

> 
> 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.

I agree about in the impact on balance when encryption is applied
post-first-sale.  Pre-first-sale encryption enables a host of useful (to
the public) business and distribution models, enables disintermediation,
and protects privacy**.  

This is why I keep yammering on about the important distinction of pre
vs. post sale circumvention, and TPM's only being TPM's if they "en loco
vendor" in the role of that first sale, or prevent <em> only </em>
infringing uses.  If we get that right, limit TPM (any other use ==
copyright abuse),  then this is a win-win for the copyright holders
(they are protected from the "sum of all fears" logic they currently
cling to) and the public.

.002


** Do you really want all your neighbors to know you just received the
the eBook of "the Complete guide to embarrassing and contagious skin
disorders". I don't! Wait, umm I should've have told you that.  ;-)

.002