On Thu, 04 Jun 2009 13:20:05 -0700, Darren New wrote:

> Jim Henderson wrote:
>> Are you?
> 
> Pretty sure. IANAL.

It would be interesting to see that play out in court.

>>  I've not heard that one before, I would think that might open
>> the person making the modifications up to being prosecuted under DMCA.
> 
> It depends on whether it was done to enable access to the work or to
> enable copying of the work, I think. IANAL. :-)

Possibly, but I think DMCA still trumps it.  I'm not saying that's right, 
but it seems that it would, though DMCA does include a specific provision 
for accessibility IIRC.

>>> It's a global market. People have to learn to suck it up.
>> 
>> That's why these days we don't "buy" products, we "license" them.  The
>> ownership stays with the seller and any use that violates the terms of
>> the license voids the license and your right to use the product.
> 
> This is also incorrect. Copywrite v. Prolock showed that federal
> copyright laws override state licensing laws, at least in the USA. If
> your product is copyrighted, you can't use a contract to override the
> fair use rights.

Well, yes, federal laws override state licensing laws, but it would be 
difficult to show that cracking a program hard-coded to require Windows 
XP to run on Win2K is "fair use" of the work.  Again, would be 
interesting to see that actually tried, because DMCA explicitly provides 
provisions for preventing the circumvention of technological means used 
to protect intellectual property.

That's why decss (and its derivatives) and things like ConvertLIT (an e-
book format converter to convert Microsoft's .lit format to other e-book 
formats while stripping the license enforcement portions from the file) 
are considered to technically be illegal in the US.

But that's never been challenged in court.

>> I disagree with this model very strongly.  The laws in Germany prohibit
>> this type of license - if you pay for something, you bought it, and the
>> vendor can't restrict you from doing things to what you bought.  So I'm
>> told by people who live there, anyways.
> 
> Same here. People just don't believe it, tho. Not because the laws are
> written that way, but because federal copyright overrides state
> licenses.

Yes, but I think a license agreement on software these days isn't a state 
license.  In the Prolock case, if the license was intended to be enforced 
using state licensing laws rather than federal licensing/intellectual 
property laws, then it was a very poorly designed license indeed, because 
it would require that the license be written to be enforceable in every 
locality.

I've always thought that the whole idea of clickwrap/shrinkwrap licenses 
was legally dubious in any event.

> I haven't studied the DMCA enough to know what's going on there, but
> it's still going to override licenses.

Well, yes, except that the DMCA does provide software developers with 
something that is enforceable to prevent illegal copying.

One of the problems with the fair use doctrine (as I understand it) is 
that it's not really codified as to what constitutes fair use.  For 
example, in a video production, does 30 seconds constitute fair use?  2 
minutes?  20 minutes?  There's no real legal definition for what fair use 
is, it just seems to be a case of "I'll know a violation of fair use when 
I see it", which isn't a legal definition by any stretch.  The law tends 
to be very specific, sometimes overly so.

Jim

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