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

tb@becket.net (Thomas Bushnell, BSG) writes:

> 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.

You haven't read the DMCA, have you?  The actual text is "No
person shall manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service, device,
component, or part thereof, that--" (1201(2))

Debian certainly manufactures, imports, and offers to the public

> 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.

The speech-nature of computer programs may be protected; the
functional nature of computer programs is likely to not be.  The
courts appear to be favoring, at best, a portmanteau approach to the
question "Is Code Speech?"

> 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.

Given the lack of explicit license or contract in the DVD packaging,
your argument sounds reasonable -- an alternate explanation is that
Yamaha and Best Buy are also violating the DMCA, but the MPAA declines
to sue them.

> 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.

I think that neither you nor I are lawyers, and Debian should keep
its nose painfully clean until it has reliable legal advice on this
subject.  And probably let somebody else be the test case.


Brian T. Sniffen                                        bts@alum.mit.edu

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