A ruling in the bnetd DMCA case [LWN.net]

A ruling in the bnetd DMCA case

Posted Oct 2, 2004 21:55 UTC (Sat) by ccchips (subscriber, #3222)
Parent article: A ruling in the bnetd DMCA case

This ruling needs to be appealed. It is about the dumbest, most arrogant ruling I have ever seen in my entire life, WRT software developement.

That bit about the work being "of limited commercial use," has exactly *what* to do with infringement of copyright?

You don't even have to be a lawyer to see that any law based on that criterion is absolutely *wrong*.

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A ruling in the bnetd DMCA case

Posted Oct 2, 2004 22:39 UTC (Sat) by jvotaw (subscriber, #3678) [Link]

> It is about the dumbest, most arrogant ruling I have ever seen in my entire life, WRT software developement.

I agree. Of all the possible outcomes of this case, I would never have imagined one as egregious as this. Time to write a check to the EFF...

-Joel

Appeals

Posted Oct 3, 2004 5:04 UTC (Sun) by Ross (subscriber, #4065) [Link]

We fully intend to do so. Thanks for the support everyone. The comments
here, on the linked blogs by Ernest Miller and others, and even the
comments on Slashdot have been very supportive. It's comforting to see
that there are so many people who understand the negative aspects of this
decision. The level of awareness is much higher than it was a few years
ago when we decided to fight it in court rather than let Blizzard stop us
with a DMCA takedown notice.

Possible response to "limited commercial use" decision

Posted Oct 7, 2004 2:32 UTC (Thu) by pjm (subscriber, #2080) [Link]

Should we conclude that a country's schools, roads, hospitals or judiciary system has "limited commercial purpose or use" if they are provided to a person free of charge (e.g. even if the person pays no taxes, or in some cases even if the person isn't a citizen of the country) ?

Could we not conclude that they have even greater use & value by being provided free of charge, by making them more accessible?

One way of forcing a rethink about what constitutes a circumvention device would be to [suggest hypothetically] suing the judge for providing his ruling to the public. His ruling has "limited commercial purpose or use", so is strictly speaking a circumvention device under the current wording of the law (see "relevance of commercial use" post).

A slightly less frivolous approach is to take something that can in fact be used for circumventing a control device (more precisely "a technological measure that effectively controls access to a work protected under this [DMCA/copyright] title"). Possibly the judge's ruling can still be used as such a circumvention device, e.g. via buffer overflow causing a separate checking process to crash, where the invoker treats crashing the same as it would treat an indication of successful authentication. Or using the printed copy of the ruling as a masking device similar to how marker pens were famously able to circumvent a certain CD protection scheme.

Ideally the protected work in question should be a brief poem that makes a point similar to the first two paragraphs of this post, perhaps rhyming "free of charge" with "access to the community at large".

The suggestions in this post probably shouldn't be taken too seriously, but they could form a part of a verbal argument presented to a judge as to why the law should be changed/reinterpreted.

relevance of commercial use

Posted Oct 6, 2004 7:33 UTC (Wed) by pjm (subscriber, #2080) [Link]

From memory, it is not about copyright infringement per se, but about the DMCA. I believe the DMCA tries to say something about products that can be used for bypassing a technical measure to enforce copyright, and that also has non-infringing uses. (By analogy, it tries to say whether or not it's OK to have a crowbar or baseball bat, given that they can be used for breaking the law.)

Unfortunately, the criterion it offers apparently needs some debugging. Section 1201 says "No person shall ... provide ... any technology ... that [EITHER]:

is primarily designed or produced [to circumvent];
has only limited commercially significant purpose or use other than [to circumvent]; OR
is marketed ... for use in [circumvention].

In particular, it appears to mean that everything with limited commercially significant purpose or use is considered a circumvention device whether or not it can in fact be used for circumvention!

However, there are one or two ambiguities:

Does the adjectival phrase commercially significant modify just “purpose” or does it modify “use” as well? I.e. does it mean has only limited use or commercially significant purpose other than ... or does it mean commercially significant purpose or commercially significant use ? (The judge appears to have taken the latter view.)
Does not useful other than for X” have the mathematician's interpretation (not exist use U s.t. U ≠ X) or does it also require that there exist commercially significant purpose or use for circumvention? (The judge appears to have taken the simple mathematician's view.)

IANAL.