[free-sklyarov] RE: FJIA etc

[Matthew Russotto]

> Judge Kaplan may had been able to do that in the Goldstein case
> (that was a civil case - no jury). In this case, as you say, the jury
> will decide whether Dmitry is innocent - but it's far from being
> as clear cut as you think. There are lots of open questions:
> - is source code a "device" as defined by the DMCA? I hope that's
>   not true.
> - is a "compiled program" a device as defined by the DMCA? ISTR
>   Congress' intention was that it shouldn't be.

The DMCA doesn't define "device".  But what it forbids is
"technology, product, service, device, component, or part thereof"
That's pretty broad, and it's clear that AEBPR is a "product" if nothing
else.

The device question is more interesting in patent cases, where some
companies (notably Dolby) have been sending takedown notices for
source code based on patents they hold.

> - is Adobe's E-Book reader an "effective technological measure"
>   as defined in the DMCA? I don't think it is, and I think many
>   others in the crypto field will agree.

    (B) a technological measure ''effectively controls access to a
          work'' if the measure, in the ordinary course of its operation,
          requires the application of information, or a process or a
          treatment, with the authority of the copyright owner, to gain
          access to the work.

Unfortunately, while the measure is ineffective in the real world, it
does seem to fall squarely under this clause.