RE: [dvd-discuss] did everyone already see this?

["Richard Hartman" <hartman(at)onetouch.com>]

> -----Original Message-----
> From: Ernest Miller [mailto:ernest.miller@aya.yale.edu]
...
> 
> Unfortunately, that is not how courts define access, or a "work," for 
> purposes of the DMCA.  

Heck, "a work" for purposes of Title 17 in general is not clearly 
defined!  They've got definitions for various types of works (anonymous,
etc) which all give certain qualifications about how "a work" is 
created ... but no definition for the base "a work".

>I'm not sure that the distinction is all that 
> clear to begin with when it comes to computer programs.  

... especially in the case where the function of the program
may be deemed "a work", such as a computer game which has
story, plot, dialog, etc.

However, in this case, the function of the program was
purely mechanical: opening a garage door.  This is not
a copyrightable work.  And the program itself was not 
"accessed", it was operated. The program _IS_ the TPM, it 
can not simultaneously be the work it is protecting.

... actually further down in the decision there is some
mention of this issue, but they don't seem to come to
any conclusion on it.  I guess if they had less poorly
defined grounds elsewhere they didn't want to get into
this more than they had to.

>In any case, 
> you don't achieve much with the distinction.  All you do is 
> force garage 
> door companies to create transmitters that cause some copying and 
> distribution to occur.  For example, when you press the 
> button on your 
> garage door transmitter, it plays a happy little copyrighted tune it 
> gets from the garage door mechanism.

... and the competitor makes an opener that does not play that
tune, hence no access to the protected work, hence no bypass
of the TPM.

> 
> The problem isn't finding clever ways to distinguish Reimerdes from 
> garage door openers (which I don't believe possible).  The issues is 
> getting rid of the DMCA.

And a valid approach to doing so is to establish that it
is too poorly written to be enforcable.

> 
> Richard Hartman wrote:
> 
> >The DMCA states that at TPM is a measure protecting
> >access to copyrightable content.  A program's source
> >code would meet that standard, a program performing
> >a function would not.
> >
> >Title 17, Sect. 1201.A.1.a
> >No person shall circumvent a technological measure that 
> effectively controls access to a work protected under this title.
> >
> >What is "a work protected under this title"?  Well ... 
> unfortunately they never do define "a work".  They start in 
> Sect. 101 with "An ''anonymous work'' is a work ...".  
> However it seems to be generally accepted throughout that "a 
> work" is some sort of expression fixed in a medium ... not a 
> function, such as opening a garage door.
> >
> >
> >
> >  
> >
> 
> 
> 




-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi/sec: not just a good idea, it's the LAW!