[free-sklyarov] Re: free-sklyarov digest, Vol 1 #273 - 4 msgs

Morgan morganw at yahoo.com
Wed Nov 7 10:19:35 PST 2001

David Haworth wrote:
There are lots of open questions:
> - is source code a "device" as defined by the DMCA? I hope
>   not true.
> - is a "compiled program" a device as defined by the DMCA?
>   Congress' intention was that it shouldn't be.
> - is Adobe's E-Book reader an "effective technological
>   as defined in the DMCA? I don't think it is, and I think
>   others in the crypto field will agree.
> - did Dmitry "distribute" (traffic, whatever) anything? If so,
> - did he do it for commercial gain? His company did make a
charge for
>   the software, but I don't think Dmitry made any commercial
>   It's far from clear even if Elcomsoft made any commercial
>   from the limited number of copies they sold or expected to

I think there's another important question.  It didn't occur to
me until I actually read Title 17, Section 1201
(http://www4.law.cornell.edu/uscode/17/1201.html is one source).

1201 c says:

(c) Other Rights, Etc., Not Affected. - (1) Nothing in this
section shall affect rights, remedies, limitations, or defenses
to copyright infringement, including fair use, under this title.

(2) Nothing in this section shall enlarge or diminish vicarious
or contributory liability for copyright infringement in
connection with any technology, product, service, device,
component, or part thereof. 
(3) Nothing in this section shall require that the design of, or
design and selection of parts and components for, a consumer
electronics, telecommunications, or computing product provide
for a response to any particular technological measure, so long
as such part or component, or the product in which such part or
component is integrated, does not otherwise fall within the
prohibitions of subsection (a)(2) or (b)(1). 
(4) Nothing in this section shall enlarge or diminish any rights
of free speech or the press for activities using consumer
electronics, telecommunications, or computing products. 

In RIAA v. Diamond Multimedia
http://www.eff.org/Legal/Cases/RIAA_v_Diamond/ the judge,
building on Sony v. Universal City Studios (the Betamax case)
found that there were uses of the Rio mp3 player that didn't
involve contributory infringement.  He seemed (to me) to be
building from the District Court's finding in the Betamax case

"Selling a staple article of commerce -- e. g., a typewriter, a
recorder, a camera, a photocopying 
machine -- technically contributes to any infringing use
subsequently made thereof, but this kind of 
'contribution,' if deemed sufficient as a basis for liability,
would expand the theory beyond precedent and 
arguably beyond judicial management.

I'm not sure how to read the Supreme Court's final opinion, but
it seems that they were overturning the appeals court overturn
of the district court findings.  There are a bunch of findings
of law & fact, though, so I can't figure out which ones stand


Is 1201 (c) only an exception to 1201 (a) which is about the act
of circumventing itself or is it also about (b)?

It doesn't *claim* to be about (a) only.  Is the DMCA self


Dmitry's code has non-infringing uses (how do you write a book
review if you can't quote some text from the book?) and other
judges have said they don't want the courts clogged with cases
where judges have to weigh the infringing vs. non-infringing
uses of a product ("beyond judicial management". (I guess you
can argue that the DMCA says "OK judges, you can't figure this
out, fine, we'll handle it in the legislative branch).

Under Betamax & Rio, the producer of a device isn't liable for
infringing uses by the devices's users.  Does the DMCA overturn


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