Re: [dvd-discuss] Re: TurboTax for free?

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

Discarding the rest of the thread there are two points that emerge

(1) it is the reasoning of Kaplan and the MPAA that confuses legally the
clear ethical differences between using an unsolicited DVD by means of
DeCSS and installing TurboTax by means of a forged, cracked, or obviated
key.  Whether that flawed reasoning is also embedded in the correct
reading of the DMCA really has not been shaken out in the courts.

Holding that "a key, is a key, is a key" and any unauthorized key (from
anyone) constitutes a violation of the rights holders rights (without
regard to the transactions), is the basis of the confusion. 

This results in the confusing of a TPM in which no other grant of
rights, authorization or access keys need flow "FROM THE RIGHTS HOLDER"
vs. the case where addition information, grants, or authorization are
needed "FROM THE RIGHTS HOLDER".  Because I need a key from someone else
to read the DVD, the rights holder claims that they haven't provided
authority to access.  Yet they will provide no more information to me
once I have the player, nor will they (the rights holder) gain any
addition income from me by my acquiring of the third party key.  Where
the key comes from and who is remunerated for it are key.  If I can
acquire the DVD player key from the DVD-CCA (or not) without economic
impact on the rights holder, then holder (or not) the key cannot impact
any of the rights holders rights.  This gives a clear legal distinction
for DVD vs. "keyware" like TurboTax.

(2) the focus needs to be on the impact on the rights holder, as fair
use always has been focused their.  No-impact, no-issue. Impact, issue. 
One way to look at this is the creation of "false" authorized persons.  

If I buy a DVD, everyone agrees I'm an authorized person when I use a
DVD-CCA licensed DVD player.  If I loan my DVD to my mother, she becomes
the authorized person. The authority goes with the possession (again
clearly with DVD-CCA players). Now, if I take my disc over to my friends
house reason dictates that I am still an authorized person (as I still
possess the disc).  What if my friend has a home built Linux DVD player
and I watch the movie at his house? Have we created additional "false
authorized persons?".  No, my friend could have equally well visited my
home to watch the movie.  At worst I have created "false authorized"
places -- (his home theater vs. mine), but these places are both
private, and places are not persons.

Further, I cannot know whether a DVD player implements CSS or DeCSS (in
fact some ASIC synthesis of CSS is based on the published DeCSS, but
with a valid DVD-CCA key... odd).  I also cannot know if any given
player is based on a legitimately acquired key.  One might posit a DVD
software player that has added the full published key list such that
their users cannot get banned.

Later,

.002