Jim Henderson wrote:
> 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.

Right. I'm not going to argue it. I'm just going to say that given the 
protection isn't absolute, it seems reasonable someone could make an 
argument that normally using a program you just bought, even if the vendor 
didn't expect you to use it that way, might pass muster.

> 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.

I don't know. You bought it. You're cracking your own copy. Etc.  You 
haven't done anything to reduce the protection of the software itself.

> 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.

I think they're illegal to distribute, because they can be used to 
circumvent the copy protection on the files. I'm not so sure they're illegal 
to use on media you yourself bought a copy of.

> But that's never been challenged in court.

Exactly. It's all grey here.

> Yes, but I think a license agreement on software these days isn't a state 
> license.  

Sure it is. Federal law doesn't have contract law enforcement in it. 
Contracts are state laws.

> 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.

Yep. That's why licenses always have a choice of venue clause.

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

That too.

>> 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.

Again, "illegal" copying. First you have to determine if making the copy was 
illegal. *Then* you have a case. :-)

> 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.

Yep. Agreed. I suspect a lot of content producers want it that way, too.

-- 
   Darren New, San Diego CA, USA (PST)
   There's no CD like OCD, there's no CD I knoooow!

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