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

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

Dean Sanchez wrote:
> 
> It's a gift.  

100% agreed, it's a gift of a copyrighted work.  Those last two words
start the chains of restrictions on your actions.

> They have no right to determine the personal use that I make of it.  

Actually they do.  I just depends on whether your personal use infringes
their copyrights, or constitutes fair use.  It doesn't matter that the
work is in a digital medium.  If there were some way to infringe the
copyrights of a paper and ink book through personal use, restricting
those things would be their right as well.

> What if the packaging stated that I wasn't allowed to through it away - 
> I had to return it to Intuit?  Is it your contention that I would be 
> obligated to abide by that requirement?

This would be an example of an unsolicited "liability." Exactly the
point of these "unsolicited goods are gifts" Clearly no one can send by
unsolicited mail an elephant or an encyclopedia and demand you pay
return freight.

The only restrictions they can impose are those covered by copyright. 
In other words, what kind of copies you can make and for what purpose --
with those restrictions clearly limited by "ordinary use" (L Lessig
points out that reading a book isn't "fair use" it is an expected,
"ordinary use.")

> If it doesn't work without a key, then it is a broken product.  

That's not a bug, it's a feature.  Not working without a key is a
designed in element of the software, one copy of which they sent you as
a gift.  That feature turns making a complete copy of the disk as-is
(with the key "feature" in place) from an infringing copy into a fair
use.  The market value of a keyless copy is $0, the adverse effect on
the copyright holder is nil.

That "feature" also changes the "reasonable person" view of the disk.  A
reasonable person would be lead to believe by the accompanying
documentation that the copyright holder had not authorized copies or
derivative works that would result in a working copy of TurboTax without
first obtaining an authorization key.  

> I 'fixed' it for my personal use.  

What did that "fix" entail.  Making unauthorized copy of the copyright
work they sent you, (and some other actions, either patching the binary,
or creating a key).  The question that is left is, "were the
unauthorized copies fair use."  For that one needs the four part fair
use test, which your "fix" IMHO clearly fails.  The unauthorized copying
done as part (or as result) of the "fix" are thus infringing copies. 
Copies you have no right to make, and copies traditional copyright law
(not DMCA) proscribes.  The DMCA element is the codification of "tools
for purpose of infringing" are "contributory infringement".

As an aside, if once you get that key, you decide (for sport, or
educational purpose) to "fix"  the feature, have at it.  You now have
"reasonable person" authorization to do so.  IOW, a "reasonable person"
would believe that the copyright holder had given them permission to
make copies of the work gifted, that would result in a single instance
of a functioning TurboTax application.

> I don't believe that I have a right to sell copies of the 'fixed' product, 
> but I should have a right to use it.

The problem is that you don't have the right to make the copies needed
to install your fixed product and use it (unless of course you got the
key and just chose to to things the hard way).

.002

"If I only had some ham I could have ham and cheese if only I had some
cheese" 
  -- author unknown