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Re: Bug#156287: Advice on Drip (ITP #156287)

bts@alum.mit.edu (Brian T. Sniffen) writes:

> The ban on use of circumvention devices for copy-prevention schemes is
> probably toothless, given the fair use doctrine.  However, the
> following activities banned by the DMCA are not copyright
> infringement, and so fair use is not a defense for them:
>   * Trafficking in access-control circumvention devices.
>   * Accessing a protected work.

Here we have a different question, with a very different answer.

The first is easy.  The "access-control circumvention device" is not
actually a device, but a program; that is, a set of bits.  Indeed,
nobody is accused of trafficing in a *device*, but only the bits,
given that in general not even a CD is being sent.  Moreover,
trafficking is not merely transmitting, but specifically
commercially.  Debian doesn't in fact "traffic" in anything.

Anyhow, the point is that there is no existing first amendment
category which allows such a restriction on speech.  Telling someone
how to circumvent access is manifestly speech; there are exceptions to
the first amendment for copyright or trade secrets, but in the instant
case, this is neither.  Nor is it libel, or obscene.

As for the second, it is not at all clear to me that the DMCA actually
prohibits "accessing a protected work", in the context in which I have
actually purchased the copy.  I have, in fact, purchased the right to
access the information on my DVDs.  When I play it using my home-unit
Yamaha DVD player, I do not break the law, and when I do so using
DeCSS, I do the same.

Now, if my copy were illegally obtained, it might well be illegal for
me to "access" it.  I don't know.  But this doesn't affect us; the
fact that there is a legitimate use for the software immunizes us
against the fact that someone might also use it for nefarious
purposes.  I agree that, if the issue comes up, Debian should make
clear that our intention in distributing DeCSS would only be for
access to legal copies.


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