At 10:37 PM -0400 7/21/01, Declan McCullagh wrote:
On Sat, Jul 21, 2001 at 06:46:27PM -0700, Tim May wrote:
Had the DCMA been in effect in the 1950s, the Xerox Corporation and its execs and engineers probably would have faced charges for producing a "circumvention device" for enabling copyright violators. What, really, is the difference between a Xerox machine and something that allows copies of electronic text?
(Both have alternate uses besides pirating. Backups, for example.)
I realize Tim is making a general point, and I agree with his overall analysis (it makes sense, how could I not?).
But I'll play Devil's Advocate for a moment, and argue that the DMCA does not make any distribution/sale of a circumvention device verboten. It makes these three things illegal:
Before we get to Declan's three things, let us all recall that the DCMA was cited by those who threatened Prof. Felten and his students and fellow researchers if they merely _presented_ their paper at the IHW. On to Declan's points:
`(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
Not to beat dead horse, but I think a compelling case could have been made in 1965, for instance, that nearly all uses of Xerox machines in public facilities were for circumventing copyright. At least this is what I saw nearly users doing with the Xerox machines in the libraries near my home and then at college. And of course there is the VCR. The "primarily designed or produced for" use of the Beta and VHS home machines in the late 70s was of course to tape t.v. shows and movies. (The Supremes accepted the unstoppability of the VCR, which had by the time they rendered a decision in Disney v. Sony become so ubiquitous that banning them would have caused a revolt. So the Supremes mumbled about time-shifting and alternate uses. The DCMA would probably not have allowed this "fig leaf"...and would have had the Sony engineers and execs facing jailing on _criminal_, not civil, charges.)
`(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or
One wonders how Prof. Felten's revelation of deep technical flaws in a cryptograhic scheme is construed to violate this clause. Was Felten in business to manufacture devices? Nope. No commercial role. In fact, pure science. (Well, not quite superstring theory, but applied cryptography.)
`(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.
Felten and his co-workers were not "marketing" anything. It would be interesting to take another look at Disney v. Sony under the assumption that the DMCA was in place. The larger picture is of course that the Adobe/FBI bust is intended to have the desired chilling effect. My hunch is that Adobe will lose a small amount of business over this...but that this lost business will nevertheless dwarf the minuscule profits from their "e-books" micromarket. --Tim May -- Timothy C. May tcmay@got.net Corralitos, California Political: Co-founder Cypherpunks/crypto anarchy/Cyphernomicon Technical: physics/soft errors/Smalltalk/Squeak/agents/games/Go Personal: b.1951/UCSB/Intel '74-'86/retired/investor/motorcycles/guns