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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Jim Henderson wrote:
> That's ultimately the question though - did you buy it, or did you buy a 
> license that says you can use it?

Yes. And does the license specifically deny me the ability to patch the 
software to run it on a different OS?   If you're going to argue you only 
licensed it to me and that copyright fair use shouldn't apply, you don't get 
to argue that it's copyrighted too. :-)  *Everything* has to be in the license.

> 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.

Not if you wrote it. Also, it depends on what's "software". Remember the 
whole PGP-printed-in-a-book argument? DeCSS printed on t-shirts?

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

I don't think the Constitution says anything about intrastate contracts. Of 
course, not being in the Constitution never stopped anyone before. At least 
not lately.

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

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Jim Henderson wrote:
> On Thu, 04 Jun 2009 16:03:50 -0700, Darren New wrote:
> 
>> Right. That's why I said "DMCA notwithstanding".
> 
> Problem is, we can't choose to ignore DMCA.  I'm not sure I follow you 
> here.

I meant my opinion/analysis was "DMCA notwithstanding."  Not that the actual 
law is. I.e., I don't know enough about DMCA to say how it might have 
changed the landscape, so if you ignore the DMCA, then what I said is valid. :-)

> But in the case you put forth, use of a program that is restricted in 
> platform through technological means is not use of the program "as 
> intended".  I guess part of the question is "intended by whom?".

True, true. Again, hard to say.

> Taking Jeremy's suggested idea, I purchase a program that's developed to 
> run on the Mac, but I don't have a Mac.  If my intention is the important 
> one and my intention is to run it on a Linux-based PC, would it be legal 
> for me to reverse-engineer the program in order to recompile it to run on 
> Linux?  I would seriously doubt that, and I think a challenge on that 
> basis would ultimately fail in court.

Sure. But this is the argument made by DeCSS authors: Nobody had a license 
to play the legally-purchased DVD on a Linux machine, so they circumvented 
the protection to make that possible. Of course, distributing a program that 
not only played the disk but made it possible to copy it was the bigger 
problem, I think. Makes it hard to separate out the different concerns in 
the court cases.

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

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Warp wrote:
>   Isn't discrimination against customers based on their country of origin
> illegal in most places? I think some people call that "racism" (even though
> it's not the technically correct term).

	One of the tragedies of modern (all) times is that everything that is
racist is considered wrong, and lots of prejudices aren't properly
addressed simply because they're not technically racist.

-- 
Light travels faster than sound. This is why some people appear bright
until you hear them speak.


                    /\  /\               /\  /
                   /  \/  \ u e e n     /  \/  a w a z
                       >>>>>>mue### [at] nawazorg<<<<<<
                                   anl

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Warp wrote:
> Darren New <dne### [at] sanrrcom> wrote:
>> Warp wrote:
>>>   Isn't discrimination against customers based on their country of origin
>>> illegal in most places? I think some people call that "racism" (even though
>>> it's not the technically correct term).
> 
>> Now *that* would be an interesting lawsuit in the USA.  Especially since in 
>> most cases it's illegal to discriminate based on "country of origin" (i.e., 
>> ethnicity).
> 
>   Yeah, certainly if there was some physical shop which refused to sell
> anything to anyone coming from eg. the middle-East or Africa, that would
> certainly cause a huge commotion and a bunch of lawsuits. But seemingly
> online stores are exempt from this law, for some reason? Exactly what is
> this based on?

	I think the analogy (in general) is invalid.

	Likely, if you're an American visiting Japan, and try to buy something
from a store, they'll sell it regardless of citizenship.

	Online purchases (probably) have slightly different legal implications.
Sales tax being one of them.

	There may be an issue of export control. In the physical case, it's not
the shop owner's job to ask whether you'll be taking it abroad. If you
then return to the US with it, you may violate Japanese/international
laws, but the shop owner won't have.

	In the online world, the retailer may be considered to actually have
delivered the product abroad. Then he becomes liable.

	Anyone over here ever bought any of those much cheaper "international"
textbooks? The ones from India explicitly say something like "Cannot be
sold outside of India, Nepal, Bangladesh, Pakistan and Sri Lanka". I
believe I've seen some Korean books with similar large print. Now I
could physically go and buy the book there and bring it with me. Don't
know if I'll be breaking a law (I'm not selling...).

	I happen to have bought all of mine domestically in the US. Likely
someone bought them from India/Korea, brought them to the US, and resold
them - which may be illegal for him to do so.

	In case anyone is wondering - those books are not pirated or anything.
They're licensed by the original publishers to those countries (cheaper
quality paper, etc). They're much cheaper over there (easily 15x
cheaper). Likely the license terms are that they not be sold abroad -
particularly back to the US. The reasoning makes sense.

-- 
Light travels faster than sound. This is why some people appear bright
until you hear them speak.


                    /\  /\               /\  /
                   /  \/  \ u e e n     /  \/  a w a z
                       >>>>>>mue### [at] nawazorg<<<<<<
                                   anl

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Mueen Nawaz wrote:
> Likely the license terms are that they not be sold abroad -
> particularly back to the US. The reasoning makes sense.

Then the question becomes who is violating the license, and when?

Can the publisher enforce on me a contract by printing it inside the book? 
Am I required by US law to uphold a contract in India? Are you breaking 
Indian law by buying a book in the US sold to you in the US?

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

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On Thu, 04 Jun 2009 16:58:56 -0700, Darren New wrote:

> Jim Henderson wrote:
>> On Thu, 04 Jun 2009 16:03:50 -0700, Darren New wrote:
>> 
>>> Right. That's why I said "DMCA notwithstanding".
>> 
>> Problem is, we can't choose to ignore DMCA.  I'm not sure I follow you
>> here.
> 
> I meant my opinion/analysis was "DMCA notwithstanding."  Not that the
> actual law is. I.e., I don't know enough about DMCA to say how it might
> have changed the landscape, so if you ignore the DMCA, then what I said
> is valid. :-)

Oh, I see - makes sense now.

>> Taking Jeremy's suggested idea, I purchase a program that's developed
>> to run on the Mac, but I don't have a Mac.  If my intention is the
>> important one and my intention is to run it on a Linux-based PC, would
>> it be legal for me to reverse-engineer the program in order to
>> recompile it to run on Linux?  I would seriously doubt that, and I
>> think a challenge on that basis would ultimately fail in court.
> 
> Sure. But this is the argument made by DeCSS authors: Nobody had a
> license to play the legally-purchased DVD on a Linux machine, so they
> circumvented the protection to make that possible. Of course,
> distributing a program that not only played the disk but made it
> possible to copy it was the bigger problem, I think. Makes it hard to
> separate out the different concerns in the court cases.

Well, that also assumes, though, that it's legal to play the disc back on 
whatever device you have if it has a DVD reader.

But the play/copy argument is something I've had at work (for that 
matter), electronic distribution of training materials where you've put 
some restriction on it using technological means to prevent copying 
doesn't work because most modern OSes don't distinguish between "open to 
read" and "open to copy" (since "open to copy" implies "open to read").  
That's where the whole CSS copy protection (and most if not all others) 
fall down - in that if you can open something to use it legally, someone 
will find a way to do so to make a copy of it.

And ultimately, of course, trying to put a restriction on it like that 
inconveniences legitimate users but those who are determined will find a 
way around it.  The whole idea of copy protection (and consequent 
litigation ala RIAA and MPAA) is problematic from a technological 
standpoint for this reason.  The ones that *AA need to go after aren't 
the casual downloaders, but those who actually *profit* by selling 
illegal copies of the content - like the street vendors common in many 
urban areas (I hear about ones in New York, for example, but don't know 
how much of that is urban legend and how much is actually happening).  
Those are the people cutting into the profits.  The 7 year old who 
downloads 20 or 30 tracks using a Bittorrent client probably wasn't going 
to buy the product anyways.  But the guy who purchases an illegally made 
copy of the disc from a street vendor *is* paying for the product and 
cutting the artist (and the *AA folks, though they're of less concern to 
me because they don't really add any value, just cost IMHO) out of the 
profits.

Jim

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On Thu, 04 Jun 2009 16:55:22 -0700, Darren New wrote:

> Jim Henderson wrote:
>> That's ultimately the question though - did you buy it, or did you buy
>> a license that says you can use it?
> 
> Yes. And does the license specifically deny me the ability to patch the
> software to run it on a different OS?   

Depends on the license, but I could see that a license could allow "only 
these specific uses and all other uses are prohibited".  That kind of 
legalese is commonly used so people don't circumvent it by being creative.

> If you're going to argue you
> only licensed it to me and that copyright fair use shouldn't apply, you
> don't get to argue that it's copyrighted too. :-)  *Everything* has to
> be in the license.

Well, yes, but "everything" can be included in the "no other use is 
permitted" language.  So, for example, the license could read that "you 
are permitted to install the software on one computer at a time, and 
execution of that program is permitted only on the system it is installed 
on for the purpose of using the program for its intended purpose as 
outlined in the product documentation.  Any other use is strictly 
prohibited under the terms of this license."

>> 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.
> 
> Not if you wrote it. Also, it depends on what's "software". Remember the
> whole PGP-printed-in-a-book argument? DeCSS printed on t-shirts?

Oh yes, I do remember those - I wanted one of those DeCSS T-Shirts, in 
fact, but never got around to purchasing one.

>> I'm getting out of my depth here, but it seems to me that federal law
>> would have *something* about contracts in it.
> 
> I don't think the Constitution says anything about intrastate contracts.
> Of course, not being in the Constitution never stopped anyone before. At
> least not lately.

Well, the US Constitution isn't the only document that outlines federal 
law, either.  That said, there are a lot of weird things that cover 
interstate commerce which is governed by federal law, but I think it'd be 
trivial to demonstrate that a piece of software produced in one locality 
can be sold in any locality and thus the terms of the license should fall 
under federal jurisdiction rather than state jurisdiction.  Not being 
familiar with the details of the Prologic case, I'm not sure why they 
didn't use that argument (or why it didn't work if they did use it).

Jim

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> If I offer something for sale, I would have absolutely no expectations 
> regarding to whom I could or could not sell it.
> "Hi.  I want to buy a recording from you."
> "Ok, but are you black?  Do you live in China?

But what if (for example) you need to pay and do a lot of admin work to 
legally sell in China?  And your work, for whatever reason, has little 
demand from China?  What then when someone from China calls to buy your 
work?

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"Warp" <war### [at] tagpovrayorg> wrote in message
news:4a2812bd@news.povray.org...
> Nicolas Alvarez <nic### [at] gmailcom> wrote:

> > Well, in Argentina CDs cost about three times less than in the US. If
iTunes
> > music store was opened here with their current US prices, *nobody* would
> > buy. If they opened here and adjusted their prices, then they would have
to
> > take measures to avoid US citizens from setting their country to
Argentina
> > and pay 3x less. (= get 3x less ripped off than usual)

>   Isn't discrimination against customers based on their country of origin
> illegal in most places? I think some people call that "racism" (even
though
> it's not the technically correct term).

If you are going to argue that, isn't it racism to have national borders?
Even state lines?

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