To add to what Ken wrote: * DMCA includes a research exemption that would cover this if virus writer was known and could be contacted, and probably even otherwise * If not know, that's probably because he's violating the law and, as a felon facing prosecution in multiple jurisdictions, won't be in a hurry to file lawsuits * If this were a problem, Congress would soon move to amend the DMCA -Declan On Wed, Aug 01, 2001 at 12:00:08PM +0100, Ken Brown wrote:

Gabriel Rocha wrote:

...

----- Forwarded message from James Simmons <jsimmons@transvirtual.com> -----

[...]

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Virus writers can use the DMCA in a perverse way. Because computer viruses are programs, they can be copyrighted just like a book, song, or movie. If a virus writer were to use encryption to hide the code of a virus, an anti-virus company could be forbidden by the DMCA to see how the virus works without first getting the permission of the virus writer. If they didn't, a virus writer could sue the anti-virus company under the DMCA!

There was some discussion of this on the ukcrypto list recently, and, IIRC, on Bugtraq.

I think the general feeling (with all the usual IANAL floods) was that courts will set aside copyright for reasons of public policy. If your copyright (which virus writers have automatically, just like any other writers) is causing big pain to the courts, or police, or large corporations, then the courts won't bend over backwards to enforce it. (Maybe the US-style libertarians here would find that a bad thing - if they are consistent they ought not to approve of government agents (courts) setting aside laws on private property in order to make their own lives more convenient).

Also, even if someone did sue for violation of their copyright and win, what damages would a virus writer expect? Courts won't restore criminal profits - if you get caught stealing, even if you can sue the person who stopped you for unlawful arrest or whatever you can't sue them for damages because you didn't make a profit out of the theft.

Also, it might be argued (in the unlikely event that a case ever got that far) that quoting the whole of a virus for combating it was fair use.

How the DMCA affects this I don't know. It goes way beyond the old-established ideas of copyright, and into the dodgy depths of trade secrets. It is one thing to say "this is mine, you can't use it" and quite another to say "this is mine, you aren't even allowed to know what it is". By analogy with real property, copyright says you can't have a party in my garden without my permission; DMCA says you can't even take photos of my garden from next door if you need to stand on a stepladder to do it. In fact it says you can't even own the stepladder.

My guess, which you may put down to cynicism if you want, is that if your name is Disney, or Murdoch, or Turner, or Sony, or Warner, or EMI, then the US courts will enforce your DMCA "rights". But if you happen to be called "sub-tARyANyAN-c00l D00DZ", they probably won't. Between those two extremes, it is likely to depend on your lawyers.

Ken

Ken

At 12:00 PM +0100 8/1/01, Ken Brown wrote:

How the DMCA affects this I don't know. It goes way beyond the old-established ideas of copyright, and into the dodgy depths of trade secrets. It is one thing to say "this is mine, you can't use it" and quite another to say "this is mine, you aren't even allowed to know what it is". By analogy with real property, copyright says you can't have a party in my garden without my permission; DMCA says you can't even take photos of my garden from next door if you need to stand on a stepladder to do it. In fact it says you can't even own the stepladder.

An odd metaphor, but maybe useful. Here goes: It's worse than that. It says that if I _deduce_ from people going in and out of his property and from noise levels and music that he is probably having a party, I am forbidden to tell others about it (because they might "circumvent" the secrecy and crash the party). And I am even forbidden from publishing or explaining in a public way how others may use my methods to deduce the existence of neighborhood parties. (The DMCA has very nebulous language about how "strong" the original protection (cipher strength, security strength) must have been, to protect against ROT-13 and Pig Latin being DMCA-protected. Utterly subjective, probably, though Bruce Schneier will probably earn some nice bucks being called as an expert witness.)

My guess, which you may put down to cynicism if you want, is that if your name is Disney, or Murdoch, or Turner, or Sony, or Warner, or EMI, then the US courts will enforce your DMCA "rights". But if you happen to be called "sub-tARyANyAN-c00l D00DZ", they probably won't. Between those two extremes, it is likely to depend on your lawyers.

Some copyright holders are more equal than others. I don't see anyone clamoring that Tim's copyrights are being violated when his articles are bounced around the Net in the same way I see _some_ people yammering that Declan's and "Wired Online's" copyrights are being violated when _his_ articles are being bounced around. The issue is not that some outlets charge money, as most clearly don't. The only real difference between the "New York Times" going after those who forward its items and "Joe Sixpack" not going after them is that the courts will do the bidding of NYT but not JS. Nothing against Declan or "Wired Online," of course. Just noting that once again there seems to be a special status for Official Reporters, Official Publishers, Official Writers. Official Reporters are covered by Shield Laws, ordinary reporters are not. Official Publishers have law professors bemoaning violations of copyright, and so on. The recognition of some "professionals" is a much larger issue. Official Priests, for example, have priest-penitent protections that Reverend Tim of the Church of Joe-Bob does not have. And so on for dozens of other professions which gubments choose to bless with Official Status. Wrongly, in my carefully considered opinion. We are all reporters, all writers, all religious persons (even if atheists), all consultants, all persons equal under the law. "Make no law" means no special privileges for Approved Religions, for Approved Reporters, for Approved Marchers, for Approved Anyones. We went off the track a long time ago in deciding to grant quasi-official status to some members of some professions. --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

On Wed, Aug 01, 2001 at 09:31:05AM -0700, Tim May wrote:

I don't see anyone clamoring that Tim's copyrights are being violated when his articles are bounced around the Net in the same way I see _some_ people yammering that Declan's and "Wired Online's" copyrights are being violated when _his_ articles are being bounced around. The issue is not that some outlets charge money, as most clearly don't.

This is true, but the reason is that when you post somethin to cypherpunks, you're essentially giving an implied license to redistribute (and archive, etc). Same with Usenet. When I write something for Wired.com, we don't offer that implied license.

Nothing against Declan or "Wired Online," of course. Just noting that once again there seems to be a special status for Official Reporters, Official Publishers, Official Writers. Official Reporters are covered by Shield Laws, ordinary reporters are not. Official Publishers have law professors bemoaning violations of copyright, and so on.

I've never argued for official reporter priv (though I have it, naturally). I've even pissed off many of my fellow reporters arguing at a Freedom Forum event a while back that the government is already licensing reporters who apply for congressional press credentials. It's more a question of social norms in this case. If you post rants at timmay.com and slap a coypright notice and some ads up and explicitly ask that they not be redistributed -- well, then you'll soon find that people treat you pretty close to the way they treat Wired. -Declan

Why did I ever deprocmail Choate? 1. I've already read Brad's essay years ago 2. I have a lot of respect for Brad but he wrote this from his Clarinet perspective and I don't entirely agree with it 3. In any case, it does not disagree with what I wrote I expect this will be my only response to Choate in the foreseeable future. Sigh. -Declan On Sat, Aug 04, 2001 at 12:18:53AM -0500, Jim Choate wrote:

On Sat, 4 Aug 2001, Declan McCullagh wrote:

...

This is true, but the reason is that when you post somethin to cypherpunks, you're essentially giving an implied license to redistribute (and archive, etc). Same with Usenet.

Bullshit.

http://www.templetons.com/brad/copymyths.html

In particular #3.

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