OT: Legalese [Re: And another Ubuntu convert!]

Derek Broughton derek at pointerstop.ca
Tue Jan 27 02:12:26 UTC 2009

Mario Vukelic wrote:

> On Mon, 2009-01-26 at 15:30 -0400, Derek Broughton wrote:
>> > 1. Member States shall provide adequate legal protection against the
>> > circumvention of any effective technological measures, which the person
>> > concerned carries out in the knowledge, or with reasonable grounds to
>> > know, that he or she is pursuing that objective.
>> Who can argue with that?  (OK, any lawyer, could, but I _think_ it says
>> there should be laws to prevent me stealing somebody else's property).  I
>> don't think it says I should only be able to play a DVD on a specifically
>> authorized device - which the DMCA does.
> It says nothing about "stealing" whatsover. 

That's pretty disingenuous.  It's _all_ about stealing.  And that comes down 
to just how much the rights-holders want to permit "buyers" to do.

> It is only concerned with
> accessing data that was in some way DRM-ed by the provider. The
> existence of DRM is enough to define it as "effective" (per "3. For  the
> purposes of this Directive, ...")

I can see how it can be read that way - but I'd be willing to bet sight 
unseen, that at least half of the laws of the countries you've said 
implemented this directive do NOT treat it that way.
> It seems to me that it says that if the DVD pretends to be protected in
> any way (i.e., CSS), then members states shall make laws that forbid to
> circumvent such measures knowingly (i.e., installing libdvdcss2)

See, so far at least (the current government would like to change it), 
Canada says that nobody has a right to tell me _how_ I use something, 
personally, if I've bought the right to use it, and nothing in that EU 
directive would clearly contradict our approach.

>> And putting deCSS into my movie player so that I can play a DRM'd DVD
>> that I own, doesn't seem contrary to that either.
> No, because installing deCSS is neither "manufacture, import,
> distribution, sale, rental", nor "advertisement for sale".
> However, creating deCSS == "manufacture", downloading it from a foreign
> server == "import", and "distribution" is clear enough.

Yes, but the  "commercially significant purpose or use" clause makes that 

>> I particularly like the "limited commercially significant purpose or use"
>> - a lawyer would make mincemeat of that.
> Depends on what you can afford and how important you are. 

Well, I didn't say _my_ lawyer :-)

> Also, as you
> reminded me earlier, this is not the text of the law, just the
> directive.

Precisely why I'm prepared to bet that most of the laws that _have_ been 
enacted to implement the EU directive aren't that draconian.  Whereas, we 
already know that DMCA _is_. 

>> Is it "commercial (purpose or use)" or (commercial
>> purpose) or use"?  If the former, then it tends to delegitimize any non-
>> commercial software, whatever its purpose, and if the latter it tends to
>> decriminalize deCSS provided you don't actually copy anything.
> I don't understand how you read any of that into it. It says that
> devices are illegal if they have no other (purpose or use) than to
> circumvent.

Actually the "main purpose", which is broader, but I'm saying that 
jurisdictions already look at DRM as _copy protection_, and as long as the 
technology is not being used for piracy, most jurisdictions outside the US 
will treat technologies used to allow me to use something I have paid for as 

> Whether this is the case will likely have to be demonstrated
> by manufacturer or buyer and be decided ultimately by courts.
> You cannot read it as "(commercial purpose) or use" because then the
> sentence makes no sense, at least AFAICT. I interpret the parentheses in
> this case to rephrase it as such:

I can, and do, because as I say the other reading implies that _any_ 
software that has no commercial use, is invalid.  That's actually an open 
invitation to the FSF to fight their legislation.
> "[Devices that] have only a limited commercially significant purpose or,
> alternatively, use other than to circumvent".
> What would "or use other than to circumvent" mean? Or do I misunderstand
> your parenthesis?

What are you circumventing?  Canadian law, dating back to cassette tapes, 
holds that if I purchased something on one medium, I may copy it to another 
for my own use, as long as I don't give away either the copies or the 
original.  I don't see anything in this directive that absolutely would 
change that interpretation.  It's all in the implementation.

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