[FYI] (Fwd) Uses of DVDs, hearings on the DMCA, etc.

["Axel H Horns" <horns@t-online.de>]

------- Forwarded message follows -------
Date sent:      	Tue, 29 Feb 2000 13:33:17 -0500
Send reply to:  	Law & Policy of Computer Communications
             	<CYBERIA-L@LISTSERV.AOL.COM>
From:           	"Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Subject:        	Uses of DVDs, hearings on the DMCA, etc.
To:             	CYBERIA-L@LISTSERV.AOL.COM

After all the initial excitement, we seem almost to have forgotten
about the suits to enjoin the writing and publication of the DeCSS and
related programs that permit the contents of DVD drives to be
``unscrambled.''

And no one seems to have reported here, or on the other lists that I
frequent, on the responses to the Copyright Office's request for
comments on possible exceptions to the provisions of the DMCA that
criminalize circumventing technological access provisions so that one
can read (or view or listen to) copyrighted works.  The 235 comments
that were submitted are available at
<http://lcweb.loc.gov/copyright/1201/comments/>, all in PDF format.

One of the more interesting features of the comments is that around
80% of them confine themselves to discussion of the DVD/DeCSS problem.
And most of those comments refer to the fact that DeCSS allows users
of Linux boxes to access their DVD drives.  And some also mention that
this allows Linux users to access DVD disks that are encoded so that
they can only be accessed by machines in certain regions of the globe.
As I recall, however, none of the comments mention the fact that DeCSS
can also be used by MSWindows users to circumvent those regional
restrictions.

I think that last point is important, at least with respect to the New
York litigation, because it shows that there is a legitimate reason
why Windows users would want to use DeCSS that has nothing to do with
copying copyrighted materials.

A few of the comments to the copyright office speak of the
anti-competitive affects of the DVD scambling system, but no one seems
to argue that that scheme is actually an anti-trust violation.  But
cannot one argue that a scheme where a cartel divides the world into
various regions and whose members sell their goods so that they will
only work initially in one of the regions, and then after a few years
release versions that will work in some of the other regions, and so
on, is actually an anti-trust trust violation?  I am not up on the
antitrust laws as they apply to limiting sales to specific
geographical markets, but at one time, at least, I am pretty sure that
that would have been a per se violation under U.S. antitrust law.  And
what about the European Union? I shouldn't think that they would be
very happy with a situation where the DVD players available to them
cannot be used to play new films that are released in the United
States.

In any case, with the exception of the comments  of Time/Warner
<http://lcweb.loc.gov/copyright/1201/comments/043.pdf>, Sony
<http://lcweb.loc.gov/copyright/1201/comments/190.pdf>, and the Motion
Picture Association of America
<http://lcweb.loc.gov/copyright/1201/comments/209.pdf>, which all took
the position that there should be no exceptions to the
anti-circumvention provisions, all the comments supported some
exceptions, and many suggested that all classes of materials and all
uses should be exempt.

Reply comments are due by March 20.  I would suggest that any of you
with any interest in this area read at the least the Time/Warner,
Sony, and MPAA comments.  I suspect that you will be inspired to file
a reply.

My own comments appear, by the way, at
<http://lcweb.loc.gov/copyright/1201/comments/203.pdf>.

--
Peter D. Junger--Case Western Reserve University Law
School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL: 
 http://samsara.law.cwru.edu
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
------- End of forwarded message -------