[free-sklyarov] Re: Elcomsoft hearing, April 1

[Seth David Schoen]

Alex Katalov writes:

> Hi Tom,
> 
> Unfortunately, my English is not so good to describe all what was
> there, but I hope that Seth will help me!
> 
> I can say only that total discussion was not too long, and the time
> was limited - it seems that judge had learn most from the previously filed
> motions (you can see them at http://www.eff.org/IP/DMCA/US_v_Elcomsoft/)
> and today he wants only to get an additional comments and clear some
> small details.
> 
> tp> Hi, Alex:  Has there been any discussion that you're aware of that focuses on 
> tp> what happens with this DMCA law, in terms of governmental agencies needing to 
> tp> use your products to "backup" technical ebooks?  For universities that need 
> tp> your products to "backup" research ebooks?  For libraries that need your 
> tp> products to "backup" their library inventories?  The assumption is, that 
> tp> Adobe intends to move down the road, and have everything on its eBooks, thus 
> tp> making much money and profits, right?
> 
> tp> I suppose the same sort of question goes to the CBDTPA, and what impact it 
> tp> has on governmental use of "cp" "cat" and other utilities.
> 
> tp> Thanks,
> tp> Tom

I was at the hearing this morning and found the presentation of the
first amendment and fair use arguments especially forceful; maybe I'm
predisposed to believe them, however.

There was some interesting discussion about the fact that not all
circumvention is for the purpose of copyright infringement.  The
government argued that Congress knew this and still decided to
prohibit all circumvention because this would help reduce the amount
of infringement.

Mr. Burton suggested that Congress did not intend to do that, and
quoted part of the legislative history, also pointing out that the
DMCA (if interpreted to ban _all_ circumvention) would be unique in
Federal criminal law by completely omitting any kind of "criminal
intent" requirement for contributory liability.  (He claimed that all
other Federal criminal statutes which hold one party responsible for
another party's actions include some requirement along the lines of
proving that the accused party _intended to facilitate_ a crime.)

The government's silliest moments were claiming that practically all
uses of e-books are not fair uses, because they involve copying or
modifying a copyrighted work (which are exclusive rights of a
copyright holder).  They were led to such extremes as claiming that
moving a book from one computer to another _is an infringement of
copyright_.  (Also, they said that the DMCA didn't apply to public
domain works, but avoided the question of whether it's a problem if
the DMCA bans tools you need in order to _access_ a public domain
work.)

There was a little discussion of the idea that some people need to
circumvent technological restrictions in order to make non-infringing
uses.  Blind readers were mentioned, for example.

Judge Whyte took both sides seriously and asked intelligent questions.

-- 
Seth David Schoen <schoen at loyalty.org> | Reading is a right, not a feature!
     http://www.loyalty.org/~schoen/   |                 -- Kathryn Myronuk
     http://vitanuova.loyalty.org/     |