A closer look at Sunncomm's lawsuit threat [LWN.net]

A closer look at Sunncomm's lawsuit threat

Posted Oct 10, 2003 1:48 UTC (Fri) by dve (guest, #15903)
In reply to: A closer look at Sunncomm's lawsuit threat by skybunny
Parent article: Student faces suit over key to CD locks (News.com)

Circumvent: To bypass, avoid or go around, especially by ingenuity or strategem.

"has Microsoft inadvertently violated the DMCA by providing this tip to its users?"
Based on prior DMCA rulings, probably yes. If the software is not installed, then it's function is circumvented, and that's a no-no insofar as DMCA rulings to-date would seem to indicate.

IANAL, however reading the DMCA front-to-back suggests that no security device (however ludicrous) is exempt from protection from circumvention. I suppose you could put a sticker on a CD or DVD, and require the user to phone your Helldesk (toll-free or premium rate) and provide their shoe-size before placing it in any reader/player AND charge people with DMCA violation if they failed to call or provided a misleading shoe-size.

None of that holds up under the UCC, of course. (All this week, the UCC and the DMCA slug it out, in the consumer rights battle of the century: "What constitutes a sale?" all this week on pay-per-view)

From the letter of the law, I would think that a judge would have to rule for Sunncomm on DMCA grounds. He could conceivably deny them damages on the basis of being idiots. If this is academic research we get into first-amendment territory, where there's a couple prior rulings that might let Halderman off the hook. I feel a wise judge would probably bump this one to the Supreme Court for reasons of job safety. No district judge would want to call this case either way, IMO (caveat: IANAL, nor a judge).

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wise judges?!?

Posted Oct 10, 2003 9:41 UTC (Fri) by ronaldcole (guest, #1462) [Link]

Truly an oxymoron if there ever was one. Job safety? Judges are seemingly required to make mistakes... that's the whole "raison d'etre" for appellate courts. And to ensure that appellate courts will always have plenty of cases to examine, there's a little carrot they dangle called "qualified immunity": as long a judge pretents to be doing "his job", he's doesn't have to answer for his "mistakes".

A judge can't bump it to the SCOTUS, must make ruling

Posted Oct 10, 2003 9:46 UTC (Fri) by Duncan (guest, #6647) [Link]

> I feel a wise judge would probably bump this one to the Supreme Court
> for reasons of job safety. No district judge would want to call this case
> either way, IMO (caveat: IANAL, nor a judge).

Well, they might /want/ to, but ..

At least as I understand it (IANAL/J either), the gateway to the court system is thru
the trial court, which MUST decide one way or another. They can then stay the
ruling for a period of time, giving the losing side (well, in criminal cases, if the
prosecutor loses, that case is over, tho in priority cases another level may try the
person on different charges, federal on federal crimes if the state failed to convict on
the basis of state law/crimes, or vis versa, so only a trial court guilty verdict can be
appealed, tho from there the appeals either way can be appealed) time to appeal. In
some exceptional cases, appeals courts can pass on it and send it in an expidited
process to the SCOTUS, but often as not the SCOTUS rejects it and sends it back
thru the appeals process. The reason being SCOTUS likes all the appeals history
and trial and appeals arguments organized neatly before them, giving them a chance
if possible to rule on some technicality and send it back down to the bench or
appeals level for resolution based on that. In fact, the court system at every level
looks to rule on technicalities, rather than ruling on the big issues, as they are
otherwise accused of being "activist judges that make law rather than deciding
current law."

Thus, at the low end, the trial court, at least, the judge has NO CHOICE but to rule
one way or the other, tho they WILL usually try to rule on a technicality rather than
the big picture, if at all possible.

Duncan