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

["Tim Neu" <tim(at)tneu.visi.com>]

On Fri, 10 Jan 2003 13:42:46 -0700, John Zulauf wrote
> 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.

So, by your argument, receiving a book in the mail that said "don't read this
unless you send us 5$" on the cover would be considered a legally valid
limitation on your actions?

How is that any different?

> > 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.

Are incidental copies required for using a work considered copyright
infringement?  I think they are almost considered "fair use" automatically.

Otherwise, even the image on our retinas would be copyright infringement.

> What did that "fix" entail.  Making unauthorized copy of the 
> copyright work they sent you, (and some other actions, either 

I would call it an "incidental" copy, just like the image on the back of your
retina when you read a book.  Since it is absolutely required to make the copy
to make use of the copyrighted work, is (or at least should be) covered by
"normal" use of the copyrighted work, not "fair" use. (just like reading the
example book above.)

> patching the binary, or creating a key).  The question that is left 
> is, "were the unauthorized copies fair use."  For that one needs the 

What is your authority model?   The authority model in most common use is
based on ownership (I own = I am authorized to use), but that is obviously not
what you are saying here. 

Where is your authority model documented?   How does a ordinary person know
what that authority model is?   Do they have to take the publishers word on
it?  Keep in mind, sometimes companies are mistruthful about what the law
actually is in their restrictions.  (for example, the recent postings
regarding "do not copy" notices on barnes & noble public domain books)

My understanding is that I own = I am authorized is firmly established in law
and judicial interpretation.  Why is this a special case?  

> 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

How does a normal paying user get the right to make copies?   It can't be from
the codes because the installer has to copy some things from the CD prior to
asking for install codes.  (if not, the installer could never be loaded into
memory and could not legally run!)  

It can't be granted arbitrarily by the company because they could at any time
revoke their permission, in theory making copyright infringement out of all of
their "normal", code-entering customers!

It has to be granted before the codes are keyed in, and the only thing that
happens before that is the transfer of ownership.   

The only way any of this makes sense is if the ownership of the CD implies the
right to make incidental copies.    

> 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.

What if the installer malfuntions and fails to ask for the code?   Legally,
nothing has changed, the intent of the company is the same, and you still have
the same disclosure.    

> > 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).

Then ordinary users don't either.  The installer is copied into ram before
anyone enters any keys.   The only way this makes sense is if the publisher,
by giving their software "gift", also gives with it the right to make
incidental copies for the purpose of installation.

If you say the software publisher can call the installer copy "authorized" but
the hacking copy "unauthorized", then where in the law is that distinction made?  

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