Ross's TCPA paper

[Sandy Harris]

"Peter D. Junger" wrote:

> : > 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.

I certainly agree that that /should/ be the case. However, you assert
that it /is/ the case. Under what country's laws? Can you cite test
cases?

> : Now, you might say that morally he should obey the agreement he made.

I'd claim that he made no agreement; a click-through license is not a
valid contract. If I recall correctly, a Louisiana court did rule that
way in a well-publicised case, and I've heard several Canadians assert
that at least some are invalid under our law. 

> ... The important point
> is not, however, that click-through agreements are probably
> unenforceable; the important point is that people---at least
> those people who think that they own their own computers and
> the software copies that they have purchased---generally
> believe that they should be unenforceable.

However, what people generally believe has little bearing in law.

The question is whether courts -- which courts in which countries
and on what grounds -- will deem them enforcable and therefore
will enforce them when asked to do so. It does not matter much
what you believe if a court can be convinced you're violating a
law. They have quite effective ways of enforcing such judgements.

Of course, there are some good legal arguments that click-through
agreements should not be enforcable, and that contracts should not
be allowed to restrict reverse engineering. 

For that matter, there's a good argument that the DVD CCA is an 
illegal conspiracy to restrict competition and manipulate the
markets, and should be prosecuted as such. e.g. the Australian
Competition Board has demanded an explanation of region codes:

http://www.accc.gov.au//fs-search.htm

To quote two speeches from that site:

Difficulties between the pro-competitive community and Intellectual Property
Mr Ross Jones, Commissioner
Australian Competition & Consumer Commission

| Australian consumers are currently suffering from an international cartel that
| restricts their access to digital versatile discs (DVDs). The cartel, headed
| by major film studios in agreement with the manufacturers of DVD players, has
| divided the world into regions. This ensures that DVDs on sale in Australia
| will only function on a DVD player licensed for region 4 that includes Australia.
| The stated aim is to protect cinema ticket sales by preventing people viewing
| movies on DVDs in their homes before distribution to cinemas. The Australian
| subsidiaries of US film companies have been requested by the Commission to 
| explain their actions. It will then decide what action can be taken.

Globalisation and Competition Policy
Professor Allan Fels, Chairman
Australian Competition & Consumer Commission

| The Commission has requested the Australian subsidiaries of United States film
| companies to explain why their regional restrictions on DVDs should not be deemed
| a breach of the Trade Practices Act 1974. ...
|
| The Commission believes RPC is anti-competitive with Australian consumers lacking
| a choice of DVD videos and possibly paying higher prices.

The quoted documents are a couple of years old. Does anyone have
an update? 
 
A few of us have been trying, without much success, to convince the
Canadian Competition Bureau to prosecute these conspirators. It might
be worth a shot in other countries.

> (And in the
> actual case involving Linux and DVD players there was no
> agreement not to circumvent the technological control measures
> in DVD's; the case was based on the theory that the circumvention
> violated the Digital Millenium Copyright Act.)

Correct, for the case brought on the East Coast (NY? NJ?) by the
MPAA. However, the first case, brought in California by DVD CCA,
did not use the DMCA. It alleged theft of trade secrets, and
violation of the license agreement.