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

[Ken Brown]

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