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May 08, 2002
9th Circuit Denies Motion to Dismiss DMCA Case

Judge White denied a motion by Elcomsoft to dismiss their corporate indictment on charges of violating the anti-circumvention clauses of the DMCA.

The judge did effectively shoot down the argument that the law impermissibly allows an copyright owner to take a work back from the public domain or keep it from the public domain and I now understand the argument that both he and the 2600 appeals court were making about this issue. Interestingly Judge White points out that a savvy end user can defeat a protection device, but he just can't traffic in that tool. Thus, once a movie falls into the PD (watch for Eldred v. Ashcroft) then I can use my hacking skills to grab the DVD contents and post them on my website.

I still think this misses the fundamental point though. Before the DMCA, all copyright laws were actions based in the sense that a potential infringer had to do a public act to fall into its purview. Now, a copyright owner can fall afoul by doing something before an infringement takes place. A Priori speech restrictions in pursuit of copyright trouble me. Granted that White feels that since this is not a content based restriction it is acceptable. It just seems very problematic that I can publish this source code in a book - and even though it is on the continuum of speech and Judge White even agrees that the continuum includes object code - it is somehow different.

One of the funnier thoughts I had was that there might be a challenge to the DMCA under the equal protection clause. As a copyright holder in the tool to circumvent Adobe Ebooks, Elcomsoft is not being treated the same as Adobe. I know... I know... Elcomsoft could employ anti-circumvention tools too... It was just a silly thought.

Is there any situation outside of National Security, contract breach, and obscenity that I can be criminally prosecuted for publishing in book form?

Posted by hoffmang | May 08, 2002 11:22 PM


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