🚀 go-pugleaf

Kieron Briggs wrote:

> 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 point at issue is not whether the device you use will descramble the 
movie, but whether it will do so without the authority of the copyright 
holder.

One way or another, you're going to have to descramble it before you can 
watch it. There's simply no other way of using the DVD. I can see 
nothing on either a DVD's packaging, nor in the Copyright Act, nor the 
DMCA, that says you have to use a device approved by the copyright 
holder. So you have the right to descramble it inorder to watch it, 
which is what the DVD was sold to you for (but not for any other 
purpose). Now, you need a device that will do the job. Provided it only 
descrambles it to allow you to watch it, and doesn't otherwise make the 
data available to you in its descrambled form, the device is not a 
circumvention device. The issue about the definition of technolgical 
protection measure doesn't arise.

> 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.

I think they'd have a tough time arguing that you committed an offence 
because you accessed it in a way that differed from the way they 
intended, but never stated, again provided that your mode of access 
didn't go further than allowing you to watch the DVD. I can't see that 
the fair use/fair dealing issue arises here. Your right to access the 
work derives from a implied authority that was given to you by the 
copyright holder, not by any fair use right granted by statute.

If you released a DVD encoded using CSS, could you require all future 
DVD player manufacturers to seek your permission before making their 
machines? I'm not sure about the patent status of CSS, but the Copyright 
Act doesn't look at your right to use a particular TPM, so patents may 
not be relelvant.

> 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).

That's certainly true, but I'm not sure that the law can do much about 
it. Even penalties for abuse of process (which is what the amdendments 
about general drugs amount to in my view) would be difficult to apply in 
practice.

Sylvia.