On Thu, 04 Jun 2009 16:09:49 -0700, Darren New wrote:

>> 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 ultimately the question though - did you buy it, or did you buy a 
license that says you can use it?  US law is unclear about this (unlike 
German law, which I understand isn't - you bought it, period.  It's 
apparently not legal to even do shrinkwrap licensing in Germany, and it's 
been tried in court definitively there from what I understand).

>> 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.

Could be.  Of course, if it's illegal to distribute the software, that 
makes it kinda hard to obtain legally to use on media you legally own.

Of course, part of the way of working around that is to distribute as 
source, again something that's never been challenged in court:

>> But that's never been challenged in court.
> 
> Exactly. It's all grey here.

Yup.

>> 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.

I'm getting out of my depth here, but it seems to me that federal law 
would have *something* about contracts in it.

>> 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.

Makes sense to me.

>>> 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. :-)

True, that makes sense to me.  I think it depends a lot on whether you 
can get *any* copying defined as being illegal under the terms of the 
license, but that brings us back to the license-as-state-law-only point 
of the discussion, and my head is starting to hurt. :-)

>> 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.

Yes, it does seem that way.

Jim

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