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

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

Tim Neu wrote:
> 
> 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?

No.  But again no copies or derivative works are made by reading a book.

> > > 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.

Incidental copies are copies none the less and  fall under the "nature
of the use" part of Harper and Row v. Nation.  Almost nothing is
automatic in "fair use." That's the problem with post-first-sale TPM's 
like CSS they have an automatic judgment disallowing copies or access
that is in fact fair.  

Remember the third leg of the four part test is an economic impact
test.  Cracking keyware clearly adversely impacts the copyright holder
of the keyware and the market and value of the work.

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

Uh.  I have trouble seeing that as a copy. But this is clearly an
"ordinary use" aspect of any visual media.  Once it's gotten to the
retina, any other copies are either fair or infringing to a far greater
extent.  

> 
> > 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.)

I'm not sure how one can bypass the normal operation of the installer,
or modify the authorization section of a piece of software and call this
"normal" or "fair".  Again, this is using the companies software without
remuneration.  At some fractional multiplier it is reducing the
potential revenue of the product (again the four part test)

> > 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.

You own the CD and are authorized to use the software on it -- but the
software on it is:

(a) an installer program that somehow authenticate and install the tax
application
(b) a tax application that requires an authentication key to operate

You are free to make the incidental copies the installer needs to do
it's job and either grant or disallow access.  Authority to prevent you
from circumventing the security comes from the copy holders right to
control copies that would have an adverse commercial impact on the
rights holder (i.e. that aren't "fair").  Circumventing the installer or
patching the executable certainly does have that adverse impact that
makes those copies non-fair ... i.e. infringing. 

> Where is your authority model documented?  How does a ordinary person know
> what that authority model is? 

Copyright case law, and it seems very clear on this point.  The copies
needed to run installer and execute a cracked or forged authentication
version just don't pass the "fair use" test.

>  Do they have to take the publishers word on it?  

No. However in this case Intuit is the holder of a valid copyright
(AFAIK) and have the right to control infringing (ie. not "fair")
copies.

> 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)

This is of course why copyright abuse is such a vital "check" in the
system.  As for the PD books being fraudulently labeled.  I'd like to
ask for each member of the list to add to the "FakeCopyrights" Twiki
page.  

http://cyber.law.harvard.edu/twiki/bin/view/Openlaw/FakeCopyrights

> My understanding is that I own = I am authorized is firmly established in law
> and judicial interpretation.  

Actually the point of this whole mailing list is that current precedent
in Corley and Elcomsoft is that this is not true.  That the DMCA grants
arbitrary rights to copyright holders even after legal possession.

My whole argument is that the court is half right.  If the access or
copy would constitute a fair use or ordinary use, they are wrong and
possession -> authority.  However if access copy or copy would exceed
the limits of fair or ordinary use then possession does not ->
authority.

> Why is this a special case?

Your access and copying fails the Harper and Row v. Nation four part
test for fair use.  You are altering it in such a way as to deprive the
rights holder of the right to charge royalties (or set other terms like
the GPL) for non-fair copies.

> > 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!)

You clearly have the the ordinary use rights to run the unmodified
installer.  The right to copy however comes from the transaction with
the rights holder that provided the key.  That's why absent that
transaction the further copies of installation are unauthorized.

> 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!

There is nothing arbitrary at all.  Upon good and valuable consideration
from you ($39.99?) the company creates an authentication key which is
their token to the installation program that you have been authorized. 
This is the "first sale event" that changes copies from infringing, to
ordinary.  It is not entering the key that authorizes you.  The company
provides the key to communicate to their software the you <em> are
already authorized </em> by them based on your payment of the royalty.

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

No.  The financial transaction (not in the computational domain) of
"first sale" granted that right.  Typing in the key is how you verify to
the installer that you already have the right for which the key is only
a token.

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

Incidental copies so long as the use is fair.

> > 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.

The difference is that you have done nothing to circumvent the
installer.  You have taken no affirmative action.  However, the right is
the implied permission given to you when you obtain the key. 

Ethically, if a cashier gives me too much change, I believe I should
return it.  If the installer screws up and gives you a copy you aren't
authorized to have, the ethical choice is to press "uninstall."

> > > 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.   

First, running the installer and then failing to install the program
would pass a fair use test.  It doesn't impact the market value of the
good.  Second authority to install comes from the permission of the
copyright holder.  This permission is granted upon you tendering some
form of value (cash, epay, Amex, whatever).

> 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.

They have said explicitly on the packaging that they have given you no
such permission until you pay them.

> 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?

It's easy.  The copyright holder has the legal right to control the
making of copies (exception in fair or ordinary use).  The copyright
holder has stated on the packaging of the product what rights they have
allowed.

This is copyright 101 folks.  These are the "exclusive rights" given for
"limited times".  No DMCA required, except to ban a key/crack tool.

.002