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Guest Article: DCMA Legal Paper

Flux

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Guest Article: DCMA Legal Paper

http://purediablo.com/columnists/a-dcma-paper.shtml

This guest article by Stuart Reff is an actual school assignment, something he wrote in law school about the DCMA and its effect (or lack thereof) on digital piracy. Blizzard and its successful battle against BnetD is one of his examples, and this is a long and informative read. It must have been a pretty good paper too, since Stuart let us know that he has since graduated and is now a licensed attorney.
 

Hnoo B

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Stumanchu said:
I know that SOMEONE must have read this and had an opinion......

Ok, brief reply. My sister's is in law school in Cornell right now, and the two reasons you got a B- are 1) your argumentation is not nearly convoluted enough. You should have gone through the whole DMCA good to DMCA bad a few more times until by the end anyone reading it would have been so confused to as to believe whichever conlcusion you then presented, and 2) you could have tied the sections together better. Right now it reads like a score card (good for Blizzard, bad for Connectix, etc.).

Regarding the Blizzard part of the case, I would say that's the least interesting part, because I think Blizzard really is quite justified and has a pretty good case in this situation. I do think the DMCA tends to be very heavy-handed on the company's side (people can't make legitimate use back up copies like they could with a VCR), and yet sufficiently out-dated and draconian so as to become irrelevant. You could have also brought up additional aspects of the DMCA, such as the atmosphere created by the RIAA actually suing 12 year olds, and whether or not the law truly benefits in that case. Or you could have brought up how academic researchers are essentially constantly trying to hack things like OS just for the pride of reporting the flaws first, which is essentially the primary reason "bad" hackers do it (with the addition of their destructive malice), and discussed that some.

I don't know. Personally I think the Blizzard part is pretty much cut and dry.
 

Stumanchu

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Well I wasnt exactly looking for someone to tell me the reason why I got the grade I did, and I never complained regarding that grade either. Why is it relevant that your sister is in law school? That doesn't mean that that makes you an expert on legal writing.

It should be noted that the version posted is not the final draft. I had sent this to Flux a long time ago and had worked on the paper since. I sent him the final draft, but there was some kind of mixup, and he posted this one instead, the final draft flows much better and has more analysis.


This was not a standard research paper, it was a legal research paper. I can't talk about a topic unless there are cases to back up the topic. I choose the topic that I ha because there was good case law to back it up. I dont recall finding anything about RIAA in my research, either this happened recently, or I found the cases to be unhelpful or irrelevant to my topic.



Stu
 

TheJarulf

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Better late than never. Here are some comments, on the DMCA, your writing and some of your opinions/conclusions, as well as some other things too.

>This act was, at the time, referred to as "WIPOCTIA" World Intellectual Property
>Organization Copyright Treaty Implementation Act. This act would be adopted into the
>U.S.C under a different name: The DMCA, Digital Millennium Copyright Act of 1998.[1]
>One of the main reasons this act was adopted was that the federal government was
>aware of the exponential growing rate that the internet had seen throughout the mid to
>late 1990s.

Something I am not quite aware of is if this act was just due to the WIPO treaty, or due to something else. In addition, based on similar laws in Europe I would say that the DMCA goes further than was needed due to the WIPO treaty. See more below.

So, what does the DMCA really add or give that didn’t exist before? Or rather, how did it help copyright holders to protect their work? It is worth noticing that copyright law already state that it is illegal to, for example, in most cases create additional copies, distribute them, and/or make them available to the public. Sure, one can say that such activities went “rampart†in the internet, or was and is very common on the internet. However, that activity was already illegal. So what really changed with the DMCA? Lets see, you bring up the circumvention part, which is, at least for your article, the main part (there are if I am not mistaken also additions regarding ISP’s, their responsibility, procedures for handling infringement and such, that is left out as it is not part of your article or your cases and not of real interest here).

>The main issue that is brought up in most DMCA cases is circumvention. Some person
>in some form or another uses a method, whether it is through hardware or software, to
>bypass some part of program, or electronic device. This person could then use the
>device or software in a way that is prohibited by the company that made the software
>or electronic device.

For the interested, here is a link to the part about circumvention:

http://straylight.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00001201----000-.html

There are other parts of some interest, just go “up†to chapter 12 if interested, or even view the whole copyright law going all the way up to chapter 17.

I don’t fully agree with your summary here though. What is protected (as far as I can understand), must first of all be something that has a copyright on it. It then protects circumvention of protection that protects the copyright holders rights. That is, if there is some protection versus copying, that can’t be circumvented, since copying is a right of the copyright holder. Now, this might seem all right. However, what it does is really not that fantastic. The act protected (copying in my example) would already be illegal. Now circumventing the protection is already illegal. The only difference really is that now you can’t circumvent the protection even if you do not do further action (copying). However, one can of course argue that then there is no circumvention to start with. What was made illegal though was the making and trafficking in tools or programs for the circumvention. OH well, this can get you in trouble, especially if it is generic tools and such. This has some bearing to the cases.

Lets hit the big thing though, in my opinion, about the DMCA. In effect, it gave a completely new and additional right to the copyright holder. Before, the copyright holder typically only controlled a few selected “rights†which can be summarized to copying, distribution (do note the loss of this according to first sale doctrine) and the making of public performances or making it available to the public. That was basically it. The DMCA, however, added a new right indirectly, the right to ACCESS the work. Or rather, there is no right to access for the copyright holder, but if he puts any type of control system that prevents or controls access, you can not circumvent it. IN effect, that gives an access right to the copyright holder. Something, in my opinion very huge and powerful, since it gives the copyright holder the ability to control use of the work, something that was not possible before. This is really what the cases of DMCA in many cases are, the circumvention of access control, not copying control or distribution control (typical copyright rights).

This access issue is something I would say is added on top of the WIPO treaty implemented by the DMCA. Looking for example at the EU directive that also implements that treaty, it makes it clear that circumvention is only for protection against rights the copyright holder already has. Since access is not such, there is no need to implement a prohibition of circumvention of other protection. And indeed, some countries in Europe has indeed avoided adding access, while others have added it. The Swedish law implementing the EU directive (and hence the WIPO treaty) did no implement it. The text for the law carefully discuss the issue and note that for example the region system used for DVD discs/players, is not such a protected system since it has nothing to do with copyright rights, but by simple access rights (that is, were you can access a particular work, in this case a DVD disc with for example a movie).

I think this is something fundamental and need to be understood as it gives copyright holders a tremendous power to control their work that they did not have before (and still don’t have in many countries).

Lets recap something from above:

>This person could then use the
>device or software in a way that is prohibited by the company that made the software
>or electronic device.

Here you are wrong, the software company, neither through normal copyright law NOR the DMCA has any right (by the law) to control how you use it. Hence there is no way that is prohibited. However, since they can control access, they can in some as a result control how something is used by not making access possible. However, there is no such right as to control of forbid some ways to use software. The only illegal thing would be to circumvent the protection, not the use itself. So if you can for example use it in some way without circumventing it, it is perfectly OK.

>The problem with circumvention is that it can lead to all sorts of problems; people
>illegally distributing software, or illegal use of electronic devices to commit crimes. The
>DMCA attempts to put a stop to these illegal activities.

The activities are already illegal. Even without the DMCA, they would be illegal. There is no need for the DMCA to make them illegal.

>Copyright industry lobbyists persuaded Congress to adopt these rules to reassure
>rights-holders that when they used technology to identify their ownership rights (e.g.,
>by digital watermarks) or to protect digital copies of their works (e.g., by encryption),
>pirates could not simply strip the CMI from those copies or use countermeasures to
>undo the encryption to facilitate copyright infringements.[5]

Just a quick note. Encryption in no way prevent copyright infringement. You simply copy the encrypted work as it is. Encryption is a measure for two persons (or entities) to communicate between themselves without a third outside person being able to access the communication. However, in most cases regarding copyright, the encryption schemes are in some weird way believed to protect the copyright holder from the user. However, the user is the one who is supposed to be able to get to the work. Encryption can’t is pointless in preventing person B from reading a message, meant to be sent from person A to B!!!! Especially since you need to give B all the ways to decrypt it together with the message.

Lets move on to your examples of cases.

>I. Online Gaming

>At some time in 2003, a few computer programmers violated the DMCA when they attempted to
>emulate Blizzards online gaming software: Battle.net.

This is slightly going ahead in time, since the case is not yet finished and hence you can’t tell if they did violate any laws or not.

>However, what the programmers failed to include was one of Blizzard’s anti-piracy measures.

So we can’t tell if that is a failure or not. After all, if you want to make a competing product or just your own product that works together with other, do you absolutely HAVE to include every functionality? It is unclear I would say in this case, especially since there is not yet a final decision from a court. So in this case, we have to wait and see if it is mandatory for someone to include every possible protection system of others into your own product just to not break the DMCA (in this case). What one ends up with, is that by just slapping on some sort of access control, you can legally exclude any and all competition possible simply by the fact that others must add that too or be in violation of the law, which seems strange to me and absurd. Indeed, as your examples show, there has been many such cases of which you mention two, the garage opener and the printer toner cartridge. In both cases, I would say people seem to say it is absurd in those cases, and your own analysis (to jump ahead in your text) is basically:

> This case is another small victory for opponents of the DMCA, the decision upholds fair
>use, and lawful competition.

Perhaps it is not your opinion and I just misread, but here you seem to think that it is a case of “fair use†and lawful competition while not in the Blizzard case (also slightly ahead in your text):

>Without a doubt the decision in Blizzard was the correct decision.

My personal take on this is that as soon as one enters computer software, people seems to accept any type of behaviour and protectionism by the software creators, while the exact same behaviour in other fields make people call “foul†and deem it insane and not acceptable. Yes, perhaps exaggerating some, but that is my view on it.

>The U.S District Court, Eastern District of Missouri ruled in favour of the Plaintiff:
>Blizzard Entertainment. The court stated very clearly that the defendants violated the
>DMCA’s anti-circumvention provision (among other non DMCA copyright violations) which
>states: "No person shall circumvent a technological measure that effectively controls
>access to a work protected under this title."[10]

Can you perhaps tell what other copyright related violations you mean? As far as I can tell, there is only one that is closely related to the DMCA as well. The other is contractual issues related to the EULA/ToS. There were several other issues put forward by Blizzard initially, but almost all were in the end withdrawn or deemed to not have happened. If you look at the case as it currently exists (and in deed the court decision you refer to), it is almost nothing copyright violation related. The two main areas is about not following the EULA and about not including the check for the CD-key that bnet do.

>The DMCA was clearly violated when the defendants circumvented the CD Key authorization,
>and offered their emulated software on the internet.

You seem to claim that you agree with the courts decision but I would like to ask you for some more clarification on what you base this, what the reasons would be. Let me ask a few questions.

1. What is the work that is having its protection circumvented?
2. If your answer is battle.net, how is it accessed by the defendants program? I would personally say that battle.net is not accessed at all, you access an alternative instead, so what protection is being circumvented?
3. And to go ahead for another possible answer, do you consider a “mode†a software program can work in, in itself to be a work that is protected under copyright? If so, were in the copyright law would you find support for “modes†to be works protected by copyright?

After all, to circumvent a protection, you still have to get to what is protected, otherwise you have hardly circumvented anything, right? Going back to a sentence I already quoted, but lets do it again:

>However, what the programmers failed to include was one of Blizzard’s anti-piracy measures.

Why should then include a check for accessing battle.net, when the player will not access battle.net at all but instead use an other alternative provided by someone else? If I want my car repaired, sure the car manufacturer can refuse if I have tampered with it, exchanging parts and so on so that the fault is mine and not theirs and the guarantee is void, but does that mean no one else should be allowed to do it either? Again, people feel such a situation or similar is not acceptable, but as soon as we move to the area of copyright (or perhaps more to software only), suddenly such practice is acceptable?

>In order for the defendants in the Blizzard case to create their software, they had to
>circumvent battle.net. The DMCA strictly forbids this type of behavior.

You are confusing what the protection is and what is accessed. It is battle.net that users typically access and the CD-check is the protection. You can circumvent the key check (to access battle.net). There is no such things “circumventing battle.netâ€. The DMCA deals with circumventing the protection system. If you call the whole battle.net the protection system, what is it that is then accessed? Bnetd? To that Blizzard does not even have any copyright related rights, so they can’t be protected for circumvention to access it.

>From the Blizzard case, it is clear that the DMCA is locking up some forms of technology
>and throwing away the key of innovation.

I would say that the DMCA part of the case is the smaller one can in part be worked around. The main problem (even related to what you have been talking about here, including reverse engineering and such) comes from the EULA part of the case. Without that, the DMCA part would be very weak.

Lets look at what is written regarding a Sony case:

>The Ninth Circuit ruled that Connectix’s development of their program for the Macintosh
>satisfied three out of the four factors of the fair use doctrine.[27] Therefore, their
>reverse engineering of the Sony BIOS and the program Connectix created is legal and fair
>competition.

Compare that to the Blizzard case. Conclusions? I would say it is the same. Why do you consider the difference to be OK? What was so wrong in the case of Blizzard and not the other? From an article perspective, I would say it would have been interesting to hear your own analysis on this. I might have misunderstood you, it is sometimes hard to see when you just tell the courts view and when you tell your own opinion. It sounds to me that you agree with the courts decision in both cases. Sure, they don’t really bring up similar argumentation, in part, I assume that in USA (just as in Sweden for example), the court only rule on what is brought up by the parties, so if one side miss to point out something, the court will not take that into consideration either. However, in an analysis or article about the cases, such a comparison would have been interesting.

This is turning out longer than I intended, so lets move forward for a few more other comments. From the console gaming.:

>The court granted Sony an injunction against GameMasters, stating that their device
>violated the DMCA because it circumvented a technological measure that protects access to a
>copyrighted work.[21] This ruling now sets up territorial boundaries, which now hinders a
>person from obtaining actual legal copies of a game from another country.

This is again an example of were the DMCA touches things that are not even related to copyright and were the DMCA give new, very powerful tools to copyright holders to control new things not at all related to copyright (before at least). Here, the access has nothing to do with copyright infringement at all. You can’t even toss out the “pirate copies†since it locks out legal copies that just happened to be sold in a place were they don’t want you to shop. I am sure Sony themselves like global markets, that they should be allowed to manufacture in one country, sell in another and so on, but they don’t like when their customers do so.

From your look on DVD:

>The program at issue in this case was not at all the last of its kind. It is very easy to
>find DVD quality movies on the internet and download them for free, despite protections
>placed on DVDs. This is one area in which the DMCA is falling short of what is should be
>doing. The DMCA was supposed to be a response to the rampant piracy on the internet.

As far as I can see, the DMCA was not only for piracy issues on internet (or piracy in general). As already said, the problem with DMCA (in my opinion) was an added new control for copyright holders, that of access, which have nothing to do with traditional copyright. In all your cases discussed (well, almost all), the problems were not really of a copyright nature. It was one of access. As discussed regarding encryption above, encrypting things does not prevent traditional copyright infringement. So, for cases like the DVD, you either simply copy the encrypted content or, as you as a user is supposed to see the non encrypted version (the actual film), you copy it at that moment. Such systems that tries you from accessing something you are supposed to access (the whole purpose of buying a DVD to start with for example) will always fail. It doesn’t matter if you criminalize the circumvention, since anyone who do that and distribute copies is already doing something illegal. It do however add new control power to the companies. They can now enter into controlling things otherwise not possible, like where in the world you use and buy things, like on what devices you use your discs and what programs you can use together and so on. And I think we are only starting to see such new control, all backed up by the law, claiming it is about piracy and other copyright infringements which are totally unrelated.

>Conclusions
>1. Is the DMCA Effective?
>
>The DMCA has been in effect for the past six years, it has had some success in protecting
>copyrights;

In the examples you cited, almost NONE was about protecting a copyright since there were hardly any copyright related issues (except for those ADDED by the DMCA). So how has it helped?

> however the DMCA has also failed to live up its expectations. Piracy is am issue that
>warranted a response, and the DMCA is exactly what out Congress envisioned would help solve
>that problem.

Of course it would not help. It basically outlawed an already illegal activity. You can’t prevent bank robberies by making it illegal for people that want to rob banks to enter the bank to start with. Those that rob the bank won’t care, they enter it anyway. It do create a whole lot of hassle for everyone else wanting to entering the bank though.

>So far the DMCA has had success in certain cases like the Blizzard case, and the DVD cases.

What copyright related issues were at stake there? None, it was issues that are almost completely unrelated to copyright. The only copyright related issues (in any of your examples) are cases were even without the DMCA, it would be illegal and the law applicable just as it is now. The DMCA in itself has not helped in the copyright related part of the cases.

continued...
 

TheJarulf

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...continued


>Piracy has had several set backs as a result of the DMCA, and this is a good thing.

Name a few? Those that already did not care about breaking the copyright, are you saying that now, due to the DMCA, they have stopped? I think not so. I think were the DMCA might possibly have an effect, is in the part you don’t touch, such as ISP reliability and such. I can’t say I know that much about it though, except that it seems to have its own problems, that although somewhat effective, causes other problems.

>Fair use is also a very important issue in which the DMCA has caused many problems.
>Regarding the all of the cases above, it is very hard to determine what is and what is not
>considered a fair use. Fair use has been around for more than 150 years, and has enabled
>our society to advance in many ways because people had the ability to use technology and
>not have their efforts hindered.[48]

One problem is that fair use is a defence to a copyright infringement. While the DMCA does not only deal with copyright infringement, but also with access, which is not about copyright. So it really doesn’t matter if there is fair use, since can still not circumvent. This would be much less an issue if the circumvention was only for cases were the action otherwise would be a copyright infringement. Of course, that would have been a much more limited scope of the DMCA.

>The day is already here in which copyright owners use "click on" licenses to limit what
>purchasers of a copyrighted work may do with it.

That is not really copyright related though, nor about DMCA, it is a contractual issue. That can be done regardless of copyright. It can be done for example, when you buy anything. People tend to get very upset about such practices, EXCPET for when it deals with software. Quite strange. I think a manufacturer of a normal hammer tried it once, and I have seen a similar thing for some sort of aquarium fish as well. But with software, everyone suddenly seems to think it is OK.

> Some e-book licenses, for example,
>prohibit the reader from reading the book out loud. Some go so far as to make it a
> violation of the license to even criticize the contents of a work, let alone to make a
>copy of a paragraph or two.[49]"

As with anything related to consumer sales (be it of goods, services or other things, there are usually in most countries, sensible laws that prevent such things. Sure, they might still be presented to you, but are non enforceable, if not for anything specifically, just because they fall under general “unfair consumer contractsâ€. I am really not aware of the US version if it, I think it would be part of the UCC:

http://straylight.law.cornell.edu/ucc/ucc.table.html

But I can be mistaken. For the EU directive on the issue, which in part implies the minimal standard for EU countries, who often have their own laws that goes further, a good look can be:

http://europa.eu.int/comm/consumers/cons_int/safe_shop/unf_cont_terms/index_en.htm

Click on the link at the start of the second paragraph. It has, among other things a list of examples (non conclusive, just a list of examples). Note that the law is quite general, simply stating that terms can’t be “unfair†without giving specific details. It is thus up to the legal system to define more. In Sweden it is for example done by Marknadsdomstolen and other related governmental agencies. The directive give a hint on what should be unfair for sure though.

>The DMCA should be amended appropriately in order to combat new methods of piracy,

Ehh, not sure why there even need to be anything about any “methodsâ€. Look at the typical copyright law. They are usually very technique neutral. You don’t need to constantly update it due to new methods or techniques. Copying something would be illegal regardless of HOW you do it. It is IF and WHEN you do it that is illegal.

One problem with trying to mess with new methods and technology is that you put a complete halt on development since usually, the full potential and use of new technology won’t be immediate apparent. Take a look at the typical VHS recorder. Should we have had specific DMCA laws dealing with it as it appeared, to protect copyright holders, who at that time was screaming their doom was imminent, we would never have got that technology, something the content companies actually turned out making a LOT of money from (if that is your goal with copyright). So stay neutral on methods and technology, or there will only be problems.


Phew. I would have liked to comment many other things as well, but then I would never finish writing this so I will stop here and post what I have so far. An interesting article to read though, although I tend to disagree with your analysis in some cases.
 

Stumanchu

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I had asked for some good commentary regarding the issues posed, and I get this trash in response. I thought maybe you were a little different than the idiot above and his "sister that goes to Cornell law." Some of your comments were fine, others were downright rude, and you fail to understand why this paper was written, when it was written, and whom it was written for.

You really have missed the entire point of this paper. One of the main points had to do with piracy WHICH INVOLVES COPYRIGHT LAW!!!!!!!!! The DMCA helps protect copyrighted works....how can you not see copyright issues at stake?? Pirated copies of games, dvds etc...that is all copyright law.

This person could then use the
>device or software in a way that is prohibited by the company that made the software
>or electronic device.

"Here you are wrong, the software company, neither through normal copyright law NOR the DMCA has any right (by the law) to control how you use it. Hence there is no way that is prohibited. However, since they can control access, they can in some as a result control how something is used by not making access possible. However, there is no such right as to control of forbid some ways to use software. The only illegal thing would be to circumvent the protection, not the use itself. So if you can for example use it in some way without circumventing it, it is perfectly OK."

As I stated earlier, and you even asked me. I said I wanted discussion about the topic of the paper, not a goddamn critique of my writing. The software company DOES have a right to control how you use their software. Why do you think people are trying to argue fair use?? The DMCA is all about fair use, piracy, and copyright protection. You seem to have missed the train on this one, re-read the DMCA again and the notes and comments on it and then tell me its only about access. Look I'm not going to sit and hold your hand through my entire paper. You are off base with several of your comments. I don't have the time to address them all so I will generalize YET AGAIN regarding this paper.

This paper was written in 2004, the appeal for bnetd had not been filed and it was unknown if an appeal would be taken. This paper was written for a Professor, for a law class, hence my opinion was never part of the assignment, nor did I intend to go at lengths to discuss my feelings about the issues, and the copy appearing on this site WAS NOT THE FINAL COPY. Flux made a slight error and posted the wrong one. The footnotes are there for a reason, that means that this material is not what I wrote, if you dont agree with some of the material don't say that "my analysis was wrong" when the material was written by someone else (i.e a source). You have also pulled small bits from the article and without the proper context behind the bits. This makes some of your analysis faulty and people reading it here will only be confused because the proper context is not present. You read ahead and assumed one sentence was involved in a previous issue, and this lead to a few incorrect statements.

Folks anyone else that wants to comment you have to realize I did extensive work on this paper, don't sit and try and tell me I am "wrong" when I have done all the work and reading and analysis. There are many ways to look at issues, there is no "wrong way" as this person believes.

This paper was not orginally intended to be viewed by anyone outside the legal field, keep that in mind if you decide to further comment.


Stu
 
I don't beleive in those "technological measures that effectively control..." the DMCA is so much writing about.
I think it's a complete fiction. All those "measures" can be relatively effective to prevent copying only on existing equipment and/or software.
You can prevent copying in some particular cases, but can't in general.
It's clear that the "measure" must allow the playback of the content, otherwise there would be no point of having this content on some kind of carrier (tape, CD, DVD, HDD, etc.).
What is playback? It's reading the carrier and transforming the data it into visual or sound form, perceivable by human.
When data has already been read, there's no way to technically control, where it's going to - to monitor or speakers (which means it's being played), or to another carrier (which means it's being copied).
It always amuses me, when I see websites, that disable right-clicking on the pages, so I can't press "save image as...".They're so naive, and I'm not so lame. My PC have already downloaded the data and NOTHING will stop me from saving it. "Print screen", paste in Photoshop, and that's it. I can also get it all from disk cache.
I think DMCA is trying to achieve the unachievable. It tries to make ineffective protection measures effective by just outlawing their ineffectiveness. :)
 

TheJarulf

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Jan 4, 2005
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Stumanchu said:
Some of your comments were fine, others were downright rude, and you fail to understand why this paper was written, when it was written, and whom it was written for.


Well, why did you have it posted here if it is not meant for people here to read and comment on? What particulary do you find rude? None of the comments were ment to be. On the other hand, considering your PM to me,, not sure if it is the word filter or you filtering yourself, that can be considered "rude" in my opinion at least.

Stumanchu said:
You really have missed the entire point of this paper. One of the main points had to do with piracy WHICH INVOLVES COPYRIGHT LAW!!!!!!!!! The DMCA helps protect copyrighted works....how can you not see copyright issues at stake?? Pirated copies of games, dvds etc...that is all copyright law.

Yes, but much of your focus in regard of the DMCA has nothing to do with piracy (which I tend to think of as copying and trading of such copies). What does that have to do with reverse engineering for example? In addition, several times you deal with the DMCA part that handles "access". Access is, apart from the addition into the DMCA, not part at all of copyright. hence the circumvention of access protection has, in my opinion, very little to do with traditional copyright and copyright of most other countries inthe world were access circumvention is added (and I still don't consider it copyright issues more than that it is part of the copyright act). Finally, many of the issues in the Blizzard case for example, had to do with EULA and not the DMCA, and even less copyright. So I can't see anything wrong with including discussion about those and trying to point out how, in my opinion, it has little to do with piracy.

Stumanchu said:
As I stated earlier, and you even asked me. I said I wanted discussion about the topic of the paper, not a goddamn critique of my writing.

So I am not allowed to comment on YOUR opinions or views on the topic, especially if I feel they are wrong?

Stumanchu said:
The software company DOES have a right to control how you use their software. Why do you think people are trying to argue fair use??

No, copyright (if we disregard the DMCA) does NOT give them any such right. The only "use" they can control, in so far as it not being allowed unless they allow you, is the public performance and making it available to the public. In addition, they have an initial control over distribution which is then, on a per copy base forfitted. Finally, they can control the making of NEW copies. That is it. Otherwise there is no way they can control any other use of their work through copyright or copyright law, none. They can't prevent you from reading a book in the toilet, or when you are onvacation in another country. Nore can they prevent you from running software on sundays and so on. However, through the DMCA, they get this new right since they can add access protection that regulate when, were, how and so on, you access the work (book or software and so on) and you can't circumvent it. They can now control so that you can't access the software on a sunday or if you are in another country and so on, and you can't go arround it since THAT is forbidden. A new right to control USE that is not part of copyright law.

The fair use applies only to those cases that are otherwise a copyright infringement, For there even to be an issue of fair use, there first need to be an infringement, as it is a defence for an infringement, making it OK. For example, even if you is not allowed to make new copies, sometimes you actually are if you can put up a fair use argument. If the software writers don't want you to run the program on sundays abut you do so anyway, they can't charge you with copyright infringement, so there is no use or point in mustering a fair use argument. With the DMCA however, they CAN charge you with copyright claims in the nature of circumvention of a protection of the access to the work!

Stumanchu said:
The DMCA is all about fair use, piracy, and copyright protection. You seem to have missed the train on this one, re-read the DMCA again and the notes and comments on it and then tell me its only about access.

I have never said it is only about access. But the access part, which is much of the cases you describe is something new in the DMCA that did not exist before. I really wrote that quite clear in my original post I would say.

Stumanchu said:
This paper was written in 2004, the appeal for bnetd had not been filed and it was unknown if an appeal would be taken. This paper was written for a Professor, for a law class, hence my opinion was never part of the assignment, nor did I intend to go at lengths to discuss my feelings about the issues, and the copy appearing on this site WAS NOT THE FINAL COPY.

So you want OTHERS opinion, on somethng were you don't have own opinion? If it was only meant for your professor and as an assignment, why post it here and have a thread for people to discuss when one is not even allowed to comment on the content of it?

Stumanchu said:
Flux made a slight error and posted the wrong one. The footnotes are there for a reason, that means that this material is not what I wrote, if you dont agree with some of the material don't say that "my analysis was wrong" when the material was written by someone else (i.e a source).

In the cases I felt your opinion or analysis is wrong, I have posted it.In addition, if I feel someone elses analysis is wrong, I wrote so to. In some cases it has been very hard to decide if what you wrote is your opinion, or that of a source you quote or if it is just the "telling of facts".


Stumanchu said:
You have also pulled small bits from the article and without the proper context behind the bits. This makes some of your analysis faulty and people reading it here will only be confused because the proper context is not present. You read ahead and assumed one sentence was involved in a previous issue, and this lead to a few incorrect statements.

No, I have not mixed up on what a comment was made. I have read your whole post several times and tried to also pull together your opinions and statements (as in if a court did right or wrong which must clearly be YOUR opinion to form an idea of what I feel you think about it. The reason I do not quote extremely large sections of text is that I wanted to cut it down and try just show what I felt was the central point of which I comment. None of the comments I made is based only on the text I quotred but the full text.

I obviousy assume that others that want to comment, post or get an idea, read your own full text as well and then my comments. Otherwise it doesn't matter how much I quote, except for quoting the full text which is pointless. I could as well just have used normal sceintific quoting, refering to a text line in your original, would that have been better? That is how you quote.

Stumanchu said:
Folks anyone else that wants to comment you have to realize I did extensive work on this paper, don't sit and try and tell me I am "wrong" when I have done all the work and reading and analysis. There are many ways to look at issues, there is no "wrong way" as this person believes.

So just because you made extensive research and worked a lot, all your conclusions and opinions are correct? And none can tell you they feel you are not right and that they are of a differing opinion? I have also read, made extensive research and work on this subject, especially on the one I comment the most, the Blizzard case. I have read every single document on the EFF site for the case for example, several times, as well as many other documents, comments and such about this and many other laws, including variants such as the EU directive. In my opinion, I feel you have drawn some wrong conclusions, in many others you are right. I made my own comments and wrote my opinions about the DMCA which are quite negative as should be evident) so obviously will disagree with you since you seem to feel the DMCA is quite good and has been used correctly in many of the cases you bring up (including combating piracy which seems to be the main topic). My opionion in that is that it has had a minimal, if any effect on piracy, especially in the cases you refer to.


Stumanchu said:
This paper was not orginally intended to be viewed by anyone outside the legal field, keep that in mind if you decide to further comment.

So why post here and wanting comments?
 

jmervyn

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TheJarulf said:
Well, why did you have it posted here if it is not meant for people here to read and comment on? What particulary do you find rude? None of the comments were ment to be. On the other hand, considering your PM to me,, not sure if it is the word filter or you filtering yourself, that can be considered "rude" in my opinion at least.
Well, Jarulf, I've always heard that lawyers were pretty nasty individuals - maybe this is part of his professional development? :D

Since I'm hostile to the DMCA for the reasons discussed at http://www.chillingeffects.org/ , I don't find much excuse to support the Act no matter how well intentioned its proponents claim it is. Nor did I bother to read the piece in any depth, when I saw his tone to your replies. But then, the U.S. isn't exactly the showplace for sensible law or moral lawyers anyways; we just have an excess of law & lawyers. Maybe some decades from now we can throw out large chunks of IP legislation and get back to some reasonable policies that are aimed at actually encouraging the marketplace, rather than squabbling over whose ideas were whose (while the lawyers suck the blood from all & sundry).