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Re: Why TPM+Parallel Distribution is non-free

MJ Ray writes:

> Terry Hancock <hancock@anansispaceworks.com> wrote:
>> A system which applies encryption, but is not enforced under law is NOT 
>> a "TPM" in the legal sense of the word, and is therefore not "being used 
>> to restrict" a work (legally).
> Adding the adverb "legally" does not change the meaning of words on
> its own.  Are there any cases showing any technological measure used to
> restrict anyone as being not enforced under law now?

I'm not sure how applicable this is, but when I first read Terry
Hancock's mail, Lexmark vs SCC occurred to me as a vaguely similar
case.  I say "vaguely" because there are notable differences in the
function of the DRM bits -- differences that, if anything, would have
helped Lexmark.

Lexmark's attempt to use the DMCA to enforce a platform monopoly
failed.  However, the DRM/TPM are still there -- it is simply legal
for SCC to digitally mark their products in a way that makes them
compatible with Lexmark's.  Even if the exact case is not apposite to
CC3.0, the lesson that DRM or TPM may exist without posing a legal
problem is relevant.

Michael Poole

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