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

If running TurboTax is not a fair use, then I
can't run it even if I _do_ buy a key from them . . .

-Richard M. Hartman

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

> -----Original Message-----
> From: John Zulauf [mailto:johnzu@ia.nsc.com]
> Sent: Friday, January 10, 2003 12:43 PM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: Re: [dvd-discuss] Postage Meters and the "Right to Tinker"
> 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.
> > 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.
> > What if the packaging stated that I wasn't allowed to 
> through it away - 
> > I had to return it to Intuit?  Is it your contention that I 
> would be 
> > obligated to abide by that requirement?
> This would be an example of an unsolicited "liability." Exactly the
> point of these "unsolicited goods are gifts" Clearly no one 
> can send by
> unsolicited mail an elephant or an encyclopedia and demand you pay
> return freight.
> 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 --
> 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.")
> > If it doesn't work without a key, then it is a broken product.  
> That's not a bug, it's a feature.  Not working without a key is a
> designed in element of the software, one copy of which they 
> sent you as
> a gift.  That feature turns making a complete copy of the disk as-is
> (with the key "feature" in place) from an infringing copy into a fair
> use.  The market value of a keyless copy is $0, the adverse effect on
> the copyright holder is nil.
> That "feature" also changes the "reasonable person" view of 
> the disk.  A
> reasonable person would be lead to believe by the accompanying
> documentation that the copyright holder had not authorized copies or
> derivative works that would result in a working copy of 
> TurboTax without
> first obtaining an authorization key.  
> > 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."  For that one needs the 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
> (not DMCA) proscribes.  The DMCA element is the codification of "tools
> for purpose of infringing" are "contributory infringement".
> 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.
> > 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).
> .002
> "If I only had some ham I could have ham and cheese if only I had some
> cheese" 
>   -- author unknown