Ross's TCPA paper

[Peter D. Junger]

Pete Chown writes:

: 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.

That isn't the reason why a click-through agreement isn't 
enforceable---the agreement could, were it enforceable, validlly
forbid reverse engineering for any reason and that clause would
in most cases be upheld.  But, unless you buy your software from
the copyright owner, you own your copy of the software and
clicking on a so called agreement with the copyright owner
that you won't do certain things with your software is---or,
at least should be---as unenforceable as promise to your doctor
that you won't smoke another cigarette.  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.  (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.)
 
: 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 don't think that one should confuse contract limitations, or 
limitations on enforceable contract limitations, with technological
limitations.  There is nothing, for example, in any legal system that
forbids one from violating the law of gravity.

One of the many problems with the use of the Digital Millenium 
Copyright Act to enforce the technological control measures
in DVD's was that it was based on the rather weird theory
that it should be illegal to do something that someone
else tried, but failed, to make technologically impossible
to do.

(Thus I am rather doubtful that Lessig's idea the everything is
code is useful for analytical, rather than rhetorical, purposes.)

: I think lawyers will hate this.

I don't see why we should.  We don't hate the law of gravity
or the law of large numbers.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger at samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger at pdj2-ra.f-remote.cwru.edu no longer exists

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