🚀 go-pugleaf

Sylvia Else wrote:
> I am not convinced that a DVD player that just lets you _watch_ a 
> non-infringing DVD on your Linux workstation falls into the definition 
> of a circumvention device.

I (and many others in the Linux community, as a browse through 
slashdot's archives would attest) disagree. The wording of the 
DMCA/FTA/FTA Implementation Bill is "access control". Contrast this with 
our current legislation, which talks about "infringement prevention"; if 
the wording needs to be changed it would appear to be because the term 
"access" is to be taken literally, ie including ALL access including 
just watching. If all that was intended to be covered was circumvention 
in order to copy, the existing wording would be adequate.

The get-out clause is that a circumvention device is OK as long as it 
has substantial "non-infringing use"; but who decides that? Certainly 
the MPAA and DVD CCA in the US didn't consider DeCSS to have substantial 
non-infringing use, even though I could use it to watch DVDs on Linux in 
a way which did not infringe copyright (and even though you don't need 
to decrypt something to copy it, just copy the encrypted version 
bit-for-bit and the player will decrypt it just like it would the original).



> You clearly have the authority of the 
> copyright holder to descramble the DVD to that extent, because it's 
> completely useless otherwise. A Linux based DVD viewer that only lets 
> you watch the DVD would not be giving you access to the work beyond that 
> given by the implied authority.
> 
> This is actually clearer under the DMCA than under our own convoluted 
> Copyright Act.

This may be true in the US under the "fair use" doctrine. However in 
Australia we don't have "fair use", we have a much weaker "fair dealing" 
clause. Since the content producers will claim the implied authority is 
not to "access" but rather "access in these certain ways", we're left 
with an uncertain situation until case law is built up.

As the document I referred to notes, the implementation bill doesn't 
take the opportunity to extend our right to cover fair use, even though 
the text of the FTA would allow it. Do you have the resources to defend 
your right to access data in whatever way you want to against 
multi-billion dollar media cartels? I sure don't.



> I'm sure people will come back with cases that they claim refute my 
> position, but has there been a successful case against a supplier of 
> software which has essentially only the same capabilities as the 
> corresponding MS Windows programs?

Worse, there's been at least one successful (US) case that I'm aware of 
against people who just _hyperlinked_ to the source of DeCSS. The court 
determined that 2600 magazine, but linking to the code, was supplying it 
and therefore liable under the DMCA.

I'm not whether you'd consider it 'successful', but Dmitry Sklyarov 
spent _time_in_jail_, arrested under the DMCA when he visited the US. He 
worked for Elcomsoft, which produces software that reads Adobe's 
proprietary eBook format. The software in question was text-to-speech 
software to allow blind/vision-impaired people to access eBooks. The TPM 
it circumvented? ROT13!

And of course, 'DVD-Jon', Jon Lech Johansen, was pursued for four years, 
tried not once but twice (acquitted both times), for reverse-engineering 
the CSS system used by DVDs. Yes, software to allow you to watch DVDs on 
Linux. Although he was not found guilty, the whole ordeal would have 
cost a huge amount of time and money.

These sorts of cases aren't always about winning, they're often about 
scaring people into not putting up the fight. (SCO vs common sense is a 
great example of that).



Kieron Briggs
Web Admin, http://www.andrewwilkie.org.au/
Proudly a member of the Ryde Epping Greens