relevance of commercial use

relevance of commercial use

Posted Oct 6, 2004 7:33 UTC (Wed) by pjm (subscriber, #2080)
In reply to: A ruling in the bnetd DMCA case by ccchips
Parent article: A ruling in the bnetd DMCA case

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.

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