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

["Tim Neu" <tim(at)tneu.visi.com>]

First of all, thanks for the response.  
I'll try to trim this down a bit in my reply. 

On Fri, 10 Jan 2003 17:34:44 -0700, John Zulauf wrote
> Tim Neu wrote:

> > So, by your argument, receiving a book in the mail that said "don't read this
> > unless you send us 5$" on the cover would be considered a legally valid
> > limitation on your actions?
> 
> No.  But again no copies or derivative works are made by reading a book.

Ok, then consider someone who only understands french paying somone to
translate the book for them.  Clearly this is a derivitive work.  Yet it
would also not be copyright infringment unless the derivitive work (the
translation) were distributed.   Is this correct?

The answer to this make some responses moot, so I have trimmed essentially
repeats of this. 

> > Are incidental copies required for using a work considered copyright
> > infringement?  I think they are almost considered "fair use" automatically.
> 
> Incidental copies are copies none the less and  fall under the 
> "nature of the use" part of Harper and Row v. Nation.  Almost 
> nothing is automatic in "fair use." That's the problem with post-
> first-sale TPM's like CSS they have an automatic judgment 
> disallowing copies or access that is in fact fair.  
> 
> Remember the third leg of the four part test is an economic impact
> test.  Cracking keyware clearly adversely impacts the copyright 
> holder of the keyware and the market and value of the work.

How is the market and value of the work not zero, before and after cracking? 
The company is giving copies of it away for free.  

> > Otherwise, even the image on our retinas would be copyright infringement.
> 
> Uh.  I have trouble seeing that as a copy. But this is clearly an
> "ordinary use" aspect of any visual media.  Once it's gotten to the
> retina, any other copies are either fair or infringing to a far greater
> extent.  

Ok, I'll give you that.  The image in the retina is not recorded in any way. 

> > "normal" use of the copyrighted work, not "fair" use. (just like reading the
> > example book above.)
> 
> I'm not sure how one can bypass the normal operation of the 
> installer, or modify the authorization section of a piece of 
> software and call this "normal" or "fair".  Again, this is using the 
> companies software without remuneration.  At some fractional 
> multiplier it is reducing the potential revenue of the product 
> (again the four part test)

They chose to give away copies.  They chose to transfer ownership of plastic
disks and a copy of their programs for free.  They could have sold it in a
store for a specific price, but instead they decided to give it away and rely
on technical tricks to generate revenue. Which specific law says that they can
change their mind later and tie conditions on the second sale after its
already given away?

> You are free to make the incidental copies the installer needs to do
> it's job and either grant or disallow access.  Authority to prevent you
> from circumventing the security comes from the copy holders right to
> control copies that would have an adverse commercial impact on the
> rights holder (i.e. that aren't "fair").  Circumventing the 
> installer or patching the executable certainly does have that 
> adverse impact that makes those copies non-fair ... i.e. infringing. 

They sell their software at zero price.  A cracked version being available at
zero price is no change, correct?    

> > Keep in mind, sometimes companies are mistruthful about what the law
> > actually is in their restrictions.  (for example, the recent postings
> > regarding "do not copy" notices on barnes & noble public domain books)
> 
> This is of course why copyright abuse is such a vital "check" in the
> system.  As for the PD books being fraudulently labeled.  I'd like to
> ask for each member of the list to add to the "FakeCopyrights" Twiki
> page.  
> 
> http://cyber.law.harvard.edu/twiki/bin/view/Openlaw/FakeCopyrights

You have still not provided any information on how someone might decide which
copies are authorized and which are not.  The installer->RAM copy is kosher,
along with the installer->Hard Disk, to whatever extent the installer does so.
 Yet the tax program->RAM copy is not and the tax program->Hard Disk is not. 
How do you know what the current whim of the company is?  How do you check and
see if the terms communicated are "fake", or fraudulent?   The whim of the
company should not matter unless copyright infringment is involved (i.e.
distributed copies)

> > My understanding is that I own = I am authorized is firmly established in law
> > and judicial interpretation.  
> 
> Actually the point of this whole mailing list is that current precedent
> in Corley and Elcomsoft is that this is not true.  That the DMCA grants
> arbitrary rights to copyright holders even after legal possession.

I don't think there is any disagreement that the DMCA has changed things.  The
discussion was basically not taking these changes into account. 

> > Why is this a special case?
> 
> Your access and copying fails the Harper and Row v. Nation four part
> test for fair use.  You are altering it in such a way as to deprive the
> rights holder of the right to charge royalties (or set other terms like
> the GPL) for non-fair copies.

They get royalties for the _distribution_  of copies... Or is the french
translation example above copyright infringment?  

> You clearly have the the ordinary use rights to run the unmodified
> installer.  The right to copy however comes from the transaction with
> the rights holder that provided the key.  That's why absent that
> transaction the further copies of installation are unauthorized.

You draw a distinction between the installer and the resulting program.  How
do you draw the line?   Why? 

> > It can't be granted arbitrarily by the company because they could at any time
> > revoke their permission, in theory making copyright infringement out of all of
> > their "normal", code-entering customers!
> 
> There is nothing arbitrary at all.  Upon good and valuable consideration
> from you ($39.99?) the company creates an authentication key which is
> their token to the installation program that you have been 
> authorized. This is the "first sale event" that changes copies from 

We agree that is the companies business plan.    But isn't the first sale the
zero cost transaction that landed it in my mailbox?   Why doesn't that count?

The authetication is the "second sale".   Companies cannot control the terms
of second or subsequent sales, otherwise there would be no used goods markets!
  Unless there is copyright infringement even if no copies are distributed. 

> infringing, to ordinary.  It is not entering the key that authorizes 
> you.  The company provides the key to communicate to their software 
> the you <em> are already authorized </em> by them based on your 
> payment of the royalty.

I have no disagreement whatsoever that their business model is based on this,
but that doesn't change the fact that they are dictating the sales terms of a
product that has already changed ownership once before.   

Why do they get to dictate the terms of the "second sale"?

> > It has to be granted before the codes are keyed in, and the only thing that
> > happens before that is the transfer of ownership.
> 
> No.  The financial transaction (not in the computational domain) of
> "first sale" granted that right.  Typing in the key is how you 
> verify to the installer that you already have the right for which 
> the key is only a token.

The first sale was a gift.   The second sale is the financial transaction. 


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