[free-sklyarov] Major test of copyright law set to start

Ed Carp erc at pobox.com
Mon Nov 25 15:35:04 PST 2002

> At Monday's hearing, the lawyers spent much of the time wrangling over
> how the DMCA should be interpreted for a jury. The criminal provisions
> of the act may be especially perplexing because they outlaw cracking
> copyright protections--or offering tools that will do so--even if the
> person cracking the protections plans to use the material in a way that
> traditionally has been legal, such as making a backup copy.
> "There isn't any law in this area," Assistant U.S. Attorney Scott
> Frewing told the judge.

This is absolutely untrue - I refer you to Sony v. Betamax, one of the most
famous copyright cases in history.

Traditionally, higher courts have looked at the intent, or meaning of the
law, not just the words on paper.  What was the intent of Congress when they
passed the DMCA?  Was it to outlaw any and all avenues of making a copy of a
copyrighted work?  Clearly not - it was to attempt to stop piracy.  But is
the attempt to stop piracy to be at the expense of the right of the
individual to protect his investment in software products?  Certainly not.

The next question to be answered is, was Elcomsoft's product legitimate, or
a subterfuge to get around the provisions of the DMCA?

There are other issues to consider, ones that probably weren't brought up at
the hearing.  What right does the United States have in enforcing it's laws
outside it's territorial boundaries?  What right does the United States have
in enforcing the DMCA against someone who is obviously not in a position to
make policy, but is just a coder, and in any event when the code in question
was written outside the US?
Ed Carp, N7EKG          http://www.pobox.com/~erc               214/986-5870
Licensed Texas Peace Officer
Computer Crime Investigation Consultant

Director, Software Development
Escapade Server-Side Scripting Engine Development Team

"The whole aim of practical politics is to keep the populace alarmed-- and
thus clamorous to be let to safety-- by menacing it with an endless series
of hobgoblins, all of them imaginary."
-- H. L. Mencken

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