[free-sklyarov] RE: FJIA etc

[David Haworth]

On Wed, Nov 07, 2001 at 11:52:45AM -0500, Matthew Russotto wrote:
> 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.

I won't argue that the binary version of AEBPR isn't a product. But
I recall reading some quotation (I think by John Ashcroft) that said
Congress didn't intend to outlaw software.

Source code, however, is a different matter. The source code by itself
won't decrypt anything. And it isn't a component of AEBPR. AEBPR
will function quite nicely without it.

> 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.

Patents are an entirely different matter and probably not relevant
here.

> > - 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.

So what exactly is the "technological measure"?
- If it's the "encrypted" file, it cannot be said in any sense to
  "operate". What's more, the legal owner of an Ebook has the authority
  of the copyright owner to apply a "process" to access the book.
  AEBPR is such a process.
- If it's the reader program - you don't even need to run the reader
  program, or even have it, to use AEBPR. How can you circumvent
  something you don't have?
- If it's a combination of the two, the second still applies.

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

I agree that the DMCA's definition of "effective ..." is extremely nasty,
but that doesn't mean that ther definition can't be dismantled and shown
to have no legal force under certain circumstances.

Dave

-- 
David Haworth
Baiersdorf, Germany
david.haworth at altavista.net
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