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

On 10 Jan 2003 at 13:42, John Zulauf wrote:

Date sent:      	Fri, 10 Jan 2003 13:42:46 -0700
From:           	"John Zulauf" <johnzu@ia.nsc.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Postage Meters and the "Right to Tinker"
Send reply to:  	dvd-discuss@eon.law.harvard.edu

>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.

Not entirely so. A gift of copyrighted material is still a gift of
PERSONAL property, repeat PERSONAL property and not intellectual property.
The copyright material is subject to copyright restrictions <exercise for
the alert reader. Would TurboTax be upset if I copied their disk sans the
key and mailed it out? I would doubt that but then how could they even claim 
copyright infringement since no information is exchanged.


>> 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.

Explain how your personal use infringes upon copyright? You have a
legitimate copy mailed to you by the owner of the copyright. So you are
not infringing upon their right to make copies. Fair use as in copyright
is not the same as what one might ethically call "fair use" and the two
should not be confused. Why is using it NOT a fair use under copyright
since you have been given a copy? Oh...there's the fact that they only meant 
for me to use it their way...but that's the problem with personal property. 
It's used by the owner as they choose. The conflict here is between the use of 
personal property and intellectual property.

>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.

Not so. The law abhors self help in advance of the adjudication. There are
NO restrictions upon personal use in the copyright laws.

>> 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

Or be bound by any contract which is exactly the situation TurboTax has
done. TurboTax can no more create a contract by mailing the CD as they can by 
mailing one in the mail with the proviso "if we don't hear from you rescinding 
this contract it is in force"

>The only restrictions they can impose are those covered by copyright.

Which in the absence of the DMCA is moot. You have been given a copy. You
are not infringing. You have entered in no contract with TurboTax.  As
personal property, you are free to use it personally. You have performed
NO act of copyright infringement since you were given a copy by the
copyright holder as a personal gift.  That the gift was flawed in not
giving you a complete set of instructions for operation is a lamentable
oversight that can be corrected.

IN the presence of the DMCA, things begin to take on a different
character. I still have performed no act of copyright infringement but the
one of circumvention.

Bottom line - You were given a legitimate copy but not a complete set of
operating instructions. If you discover how to operate it then that is
hardly copyright infringement. The question is if intellectual property
rights exceed personal property rights or even Constitutional Rights
(e.g., speech). If not, then the right to use personal property (the gift)
is superior to the right to control the use of intellectual property. In
that case, TurboTax should know this and ignorance of the law is no

>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.")

And do is running software and creating transcient copies on the disks.

>> 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.  

Then if it is sent "as is" and caveat emptor, then TurboTax REALLY has no 

>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.

Self serving statements in the accompanying document and the gullibility
of the "reasonable man" do not a legal contract make or are legally
binding upon the "reasonable man". Witness disclaimers on parking stubs

>> 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).

Unauthorized? The copy was sent to my by the holder of the copyright. It
is an authorized copy. The copyright holder isn't "authorizing" the other
actions but since it is personal property and does not infringe the
copyright, they really have no say in the matter.

> 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.

Elaborate on each of the four parts.
Unauthorized by whom and by what legal authority?

> 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".

Copies necessary for operation and copies made by every other copy of the 
program be it distributed free or not. Since one cannot distinguish between 
these copies, this is not relevant.

>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).

Well that's the sticky wicket....as personal property I do. Under the FA, I 
have a right to disseminate that information.