Ross's TCPA paper

[Pete Chown]

Anonymous wrote:

> Furthermore, inherent to the TCPA concept is that the chip can in
> effect be turned off.  No one proposes to forbid you from booting a
> non-compliant OS or including non-compliant drivers.

Good point.  At least I hope they don't. :-)

> There is not even social opprobrium; look at how eager
> everyone was to look the other way on the question of whether the DeCSS
> reverse engineering violated the click-through agreement.

Perhaps it did, but the licence agreement was unenforceable.  It's
clearly reverse engineering for interoperability (between Linux and DVD
players) so the legal exemption applies.  You can't escape the exemption
by contract.  Now, you might say that morally he should obey the
agreement he made.  My view is that there is a reason why this type of
contract is unenforceable; you might as well take advantage of the
exemption.

The prosecution was on some nonsense charge that amounted to him
burgling his own house.  A statute that was meant to penalise computer
break-ins was used against someone who owned the computer that he broke
into.

> The TCPA allows you to do something that you can't do today: run your
> system in a way which convinces the other guy that you will honor your
> promises, that you will guard his content as he requires in exchange for
> his providing it to you.

Right, but it has an odd effect too.  No legal system gives people
complete freedom to contract.  Suppose you really, really want to exempt
a shop from liability if your new toaster explodes.  You can't do it;
the legal system does not give you the freedom to contract in that way.

DRM, however, gives people complete freedom to make contracts about how
they will deal with digital content.  Under EU single market rules, a
contract term to the effect that you could pass on your content to
someone in the UK but not the rest of the EU is unenforceable.  No
problem for DRM though...

I think lawyers will hate this.

-- 
Pete


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