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List:       best-of-security
Subject:    BoS: THE COMPUTER LAW REPORT (10/20/95) [#12] (fwd)
From:       Darren Reed <darrenr () cyber ! com ! au>
Date:       1995-10-24 7:05:51
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From: Galkin@aol.com
Date: Fri, 20 Oct 1995 11:54:48 -0400
Message-ID: <951020115448_128657136@mail04.mail.aol.com>
To: CompLawLst@aol.com
Subject: THE COMPUTER LAW REPORT (10/20/95) [#12]

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THE COMPUTER LAW REPORT
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October 20, 1995 [#12]

=====================================
GENERAL INFO: The Computer Law Report is distributed (usually) weekly for
free and is prepared by William S. Galkin, Esq. The Report is designed
specifically for the non-lawyer. To subscribe, send e-mail to galkin@aol.com.
All information contained in The Computer Law Report is for the benefit of
the recipients, and should not be relied on or considered as legal advice.
Copyright 1995 by William S. Galkin.
=====================================
ABOUT THE AUTHOR: Mr. Galkin is an attorney in private practice in Owings
Mills, Maryland (which is a suburb of Baltimore), and he is also an adjunct
professor of Computer Law at the University of Maryland School of Law. Mr.
Galkin has concentrated his private practice in the Computer Law area since
1986. He represents small startup, midsized and large companies, across the
U.S. and internationally, dealing with a wide range of legal issues
associated with computers and technology, such as developing, marketing and
protecting software, purchasing and selling complex computer systems, and
launching and operating a variety of online business ventures. He also enjoys
writing about computer law issues!

===> Mr. Galkin is available for consultation with individuals and companies,
wherever located, and can be reached as follows: E-MAIL:
galkin@aol.com/TELEPHONE: 410-356-8853/FAX: 410-356-8804/MAIL: 10451 Mill Run
Circle, Suite 400, Owings Mills, Maryland 21117

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Articles in The Report are available to be published as columns in both print
and electronic publications. Please contact Mr. Galkin for the terms of such
usage.
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EXTINCTION OF THE DIGITAL LOCK PICKER?
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[This is the second of a series of articles discussing recommendations made
in the report issued September 5, 1995 by President Clinton's Information
Infrastructure Task Force. The report is entitled "Intellectual Property and
the National Information Infrastructure," and is commonly referred to as the
White Paper. The previous article was entitled "Stopping the Altruistic
Infringer" and dealt with recommendations for criminalizing infringement
activities where there is no profit motive.]

Infringement is the mortal enemy of the Information Highway. A "highway"
robber, a blood-thirsty terrorist, lying in wait to pillage an unsuspecting
victim vulnerable to unauthorized duplication and mass distribution. 

However, the destructive infringer is a relatively new concern on the
Internet. A robber can thrive only where there is something of value to be
stolen. In the "old" days of the Internet, there was nothing of "value". Most
information was there for the taking - the more taking, the merrier everyone
was. Not any more. The future of much of the Internet is as a free enterprise
zone. Commercial enterprise cannot develop if the environment is not secured
from theft.

Enter the White Paper, and its recommendation to prohibit devices that are
designed to break through technological security systems. The White Paper
recommends that a new chapter be added to the U.S. Copyright Act which would
"prohibit the importation, manufacture or distribution of any device, product
or component incorporated into a device or product, or the provision of any
service, the primary purpose or effect of which is to avoid, bypass, remove,
deactivate, or otherwise circumvent, without authority of the copyright owner
or the law, any process, treatment, mechanism or system which prevents or
inhibits the violation of any of the exclusive rights under [the Copyright
Act]."

Under the current law, established by several prominent cases, a company is
free to develop a device which can be used to infringe another's copyright as
long as the device has a substantial legitimate use. In one case (Vault Corp.
v Quaid Software, Ltd.), a company developed a software program (RAMKEY)
specifically designed to break through copy protection software. The court
held that this did not constitute contributory infringement (that is,
assisting others to unlawfully duplicate software), because this software has
a lawful purpose. Under the copyright law, a person is permitted to make one
backup copy of software, which is to be used only if the original copy is
destroyed or damaged. Therefore, the lawful use of this lock-breaking program
is to assist others to make backup copies. The court in Vault was not
bothered by the fact that RAMKEY's primary purpose may have been to indeed
assist others in producing unlawful copies.

The Supreme Court in Sony Corp. of America v. Universal City Studios, Inc.
reached a similar result. The owners of motion picture and television
programs sued Sony claiming that production of VCR's was an unlawful act of
contributory infringement. They claimed consumers used VCR's to make
infringing copies of the programs. The court held that as long as the device
is capable of substantial noninfringing uses, then the manufacturer has no
liability, even if the primary use is one of infringement. Therefore, VCR's
can be marketed since VCR's can be used in homes in a permitted way (for
example, taping a show to watch later). How bleak would the world be today if
the Supreme Court ruled otherwise, and there were no VCR's?

The White Paper points out some other areas where prohibitions similar to the
one suggested are already in effect. For example, Congress enacted the Audio
Home Recording Act of 1992, which combined legal and technological protection
for sound recordings. The Audio Home Recording Act requires a serial copy
management system in all digital audio recording devices and digital audio
interface devices imported, manufactured or distributed in the United States.
Such a system allows unlimited first generation digital copying of sound
recordings, but prevents the making of digital copies from copies. The Act
prohibits the importation, manufacture or distribution of any device, or the
offering or performance of any service, the primary purpose of which is to
circumvent any program or circuit which implements a serial copy management
system. 

However, it is disingenuous to compare the proposed prohibitions with the
Audio Home Recording Act. The proposed prohibitions are potentially very
broad in scope and application, whereas the prohibition of disabling a
specific device (a serial copy management system), which is only found in
digital sound duplicating devices, is extremely narrow and well-defined.

Some commentators feel that the White Paper's recommendation is dangerously
vague. Perhaps, under its terms, merely having a conversation about
decryption algorithms would be illegal. What about decryption by police for
the purpose of arresting criminals? How are manufacturers and distributors to
determine what the primary purpose of the device is, where is it used for
both illegitimate and legitimate purposes. What if the primary use changes
over time? 

Accordingly, the direction that this proposal should take in order to address
this vagueness is to focus on the purpose of the decryption, as opposed to
the decryption itself.

Concern has also been expressed that this provision would inhibit fair use,
because activities that would qualify as fair use could be blocked by
anti-access devices for which there is no available breaking device
available. The same concerns would apply to the inability of accessing
copy-protected works which are in the public domain, and therefore, not
protected by the copyright laws at all. Additionally, reverse engineering,
which in many cases is permissible, and which significantly contributes to
the development of technology, could be severely inhibited.The White Paper
answers these concerns by stating that (1) copyright owners have no
obligation to allow for fair use and (2) if a device is primarily used for
lawful purposes, then it would be available for use. 

In summary, the White Paper is correct that technological security
protections are necessary and should be bolstered by legal consequences.
Nevertheless, the proposal as currently formulated needs to be reconsidered
 because it could have the extremely negative result of limiting access to
valuable information that should be freely accessed.  

-- END --

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