IP: the joint plans of disk drive manufacturers and content providers to provide copy protection based on cryptographic means embedded within the drive technology

[Dave Farber <farber () cis upenn edu>]

> Date: Tue, 02 Jan 2001 22:28:18 -0500
> To: farber () cis upenn edu
> From: Jonathan Weinberg <weinberg () mail msen com>
>
>
> At 07:24 PM 12/25/2000 -0500, you wrote:
>
>
> > > Date: Mon, 25 Dec 2000 15:32:17 -0800
> > > To: "Jonathan S. Shapiro" <shap () eros-os org>
> > > From: "Mark S. Miller" <markm () caplet com>
> > > Subject: Re: Thought crimes
> > > Cc: <farber () cis upenn edu>, <ip-sub-1 () majordomo pobox com>, 
> > > <fsb () crynwr com>,
> > >    "Marc Stiegler" <marcs () skyhunter com>
> > >
> > > > [snip]
> > > > If the content providers have concluded that
> > > > copyright provides inadequate protection, they are certainly free to 
> > > devise
> > > > other means. However, they should not be simultaneously entitled to claim
> > > > the benefit of copyright for their works.
> > >
> > > To address this, we must first resolve a terminological ambiguity: Would you
> > > say that technologically enforced copy protection is really just "copyright"
> > > in a new medium, or is it "other means"?  If content owners only engage in
> > > technological means without legacy-legal backing, are they "claiming the
> > > benefits of copyright" or giving up on those benefits?
> > >
> > > Given the trans-jurisdictional nature of the Internet and the identity
> > > hiding power of crypto and mix-networks, when the law goes against the logic
> > > of technological enforceability, it will still be able to prohibit, but no
> > > longer to inhibit.
>
>
>         Technologically enforced copy control is "other means," not 
> copyright, because it is not subject to any of the legal limitations that 
> are essential to the copyright grant.  But when content owners rely on 
> those technological means, they are not eschewing their legacy-legal 
> backing -- quite the contrary.  The Digital Millennium Copyright Act, 
> which Congress passed two years ago, makes it illegal to "circumvent" any 
> technological measure a copyright owner has put in place to control 
> access to a work.  It also makes illegal any technology whose primary 
> purpose is to circumvent a technological measure a copyright owner has 
> put in place to control access to, or to prevent copying, public 
> performance, etc. of, a work.  Indeed, in the Reimerdes (DeCSS) case the 
> federal court for the Southern District of New York held that even 
> *linking* to a web site containing a copy of a program that can be used 
> to circumvent copy control may be enjoined as a violation of the DMCA.
>
> Jon
>
>
> Jonathan Weinberg
> Professor of Law, Wayne State University
> weinberg () msen com



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