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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