Trying again...[jsimmons at transvirtual.com: [OT] DMCA loop hole]

[Declan McCullagh]

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 at transvirtual.com> -----
> 
> [...]
>  
> >           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