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

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

Sham Gardner wrote:
> 
> On Fri, Jan 10, 2003 at 01:42:46PM -0700, John Zulauf wrote:
> > > 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.
> 
> How exactly is installing the program different to reading a book in this
> regard?

One doesn't copy a book onto the hard drive to read it (typically).

> > 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 --
> 
> I'm not sure of the situation in the US, but as far as I'm aware, in Germany
> copyright does *not* allow the copyright hodler to determine what kind of
> copies can be made, only whether they can be distributed or publicly
> performed.

You've got me there ANAL in the US and IA "sicher" NAL in Germany.

> > 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.")
> 
> Yet running a computer program is not?

Running a program certainly is ordinary use of the program.  Bypassing a
security measure to run a program isn't ordinary at all.  In a
premeditated way it avoids "ordinary" compensation to a copyright
holder.  (BTW, viewing DVD's on DeCSS based players doesn't avoid
compensation to the rights holder (nor infringe any other valid rights).
It is thus ordinary use)

> 
> > > 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."
> 
> You seem to be buying into the "Loading into RAM is copying, therefore
> requires the authorisation of the copyright holder, therefore can be subject
> to licensing agreements." argument of the software industry. 

A copy is a copy is a copy. That just a fact.  This however is a
positive point for those who want to avoid post-access controls.  Once
I've been given a copy, I have that copy and all the rights that come
with a copy.  This is consistant with Sony v. Universal.  A copy was
sent in the clear to my TV.  I can act toward that copy as I could with
any legitimate copy.  I can time or space shift it for example.

The fact is to install and run a program, any number of copies must be
made.  Whether these copies are ordinary use, fair use, or infringement
is all that is left to decide.


> I would argue
> that the creation of copies that are required for the work in question to be
> used at all would also fall under ordinary use. 

Going around a security measure certainly is not "ordinary use" in any
case.  The ordinary use of the copyright work is to run the installer
and enter the key.  Anything is far from ordinary use in any case.

> Current legal precedents do
> seem to say the opposite, however, but I suspect that's due to the judges in
> question not understanding the nature of software.

I think you're right there, but I don't think that "I can circumvent for
free stuff, if it's sent to me or posted on the web or ..." arguements
clarify anything for the courts.  We need a consistent view that best
matches facts (a copy was, or was not made) and law (the copy was
ordinary, fair, or not).