[free-sklyarov] Legal technicality question

[Peter D. Junger]

Dave Sherohman writes:

: On Sat, Jul 21, 2001 at 07:04:36PM -0700, Sam Gray wrote:
: > Is personal use of a circumvention device illegal under the DMCA, or is it
: > merely "trafficking" that's now a crime?  In other words, if I write my own
: > software to rip the content from an eBook to exercise my fair use rights,
: > can legal action be taken against me?  Or is it just when I try to tell
: > someone else about it?
: 
: IANAL, etc, but my understanding is that, while they couldn't manage to
: ban the _use_ of a circumvention device, creation or aquisition of a
: circumvention device were both banned.  So you're perfectly free to use
: such a program, but you can't get one without violating DMCA.

I am afraid that this has it somewhat backwards.  It is a violation of
17 U.S.C. 1201(a)(1) for someone to circumvent a protection measure.
It is a violation of 17 U.S.C. 1201(a)(1) to manufacture or traffic
in a technology or device (which arguably includes writing a computer
program or publishing it) that is intended to be used oe is primarily
used to violate 17 U.S.C. 1201(a)(1).  So, if it is not a violation of 17
U.S.C. 1201(a)(1) for the owner of an ebook to use Sklyarov's program to
get around the restrictions built into the Adobe ebook reading software,
then it cannot be a violation of 17 U.S.C.  1201(a)(2) for Sklyarov to
write his program or to ``traffic'' in it.  Originally 1201(a)(2) went
into force beore 1201(a)(1), so for a while your statement was true, but
it no longer is.

For a violation of either section to be a crime it must be for commercial 
advantage or personal profit (or something like that).




--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger at samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
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