DMCA is now a European Directive

[Ruben Leote Mendes]

Hello Karin,

This is the way I see it. IANAL.

On Wed, Jun 20, 2001 at 12:30:47AM +0200, Karin Kosina wrote:
> E.g. they specifically make an exception for computer programs, and for
> the field of "rental" and "lending" right, which i assume also covers
> the topic of whether or not you can make a "private" copy of a DVD or
> not....
> 
> See page 22:
> 
> <quote>
> 2. Except in the cases referred to in Article 11, this Directive shall
> leave intact and shall in no way affect existing Community provisions
> relating to: 
> 
> (a) the legal protection of computer programs;
> (b) rental right, lending right and certain rights related to copyright
> in the field of intellectual property;
> </quote>

You are correct that this Directive does not apply to the protection of
computer programs. It protects other kinds of works such as audio, visual
and audio-visual material.

> > Will it make software like DeCSS illegal in the member countries after 
> > they put this directive in their national laws?
> 
> Why do you think so? There are two questions around DeCSS (again, that's
> what I figure, maybe someone from the legal field could jump in here and
> help me out ;)):
> 
> (1) Can a computer program "as such", or the distribution thereof, 
>     be illegal? (since computer programs are just long strings of 
>     numbers: Can a number be illegal?! - most people say no, only 
>     the use of it for an illegal purpose makes it illegal)

It isn't illegal today. I fear that after this Directive is made law
in all the member countries it will be illegal. This is because of chapter III
"Protection of technological measures and rights-management information".
In particular Article 6.2:

"Member States shall provide adequate legal protection against the manufacture,
 import, distribution, sale, rental, advertisement for sale or rental, or 
 possession for commercial purposes of devices, products or components or the 
 provision of services which: 

  (a) are promoted, advertised or marketed for the purpose of circumvention 
      of, or 
  (b) have only a limited commercially significant purpose or use other than 
      to circumvent, or 
  (c) are primarily designed, produced, adapted or performed for the purpose 
      of enabling or facilitating the circumvention of, any effective 
      technological measures."

DeCSS is a program that allows the visualization of DVD's in free operating
systems such as GNU/Linux. To do its jobs it must decrypt the information
read from the DVD. This can be seen as a "circumvention device". It probably
violates (b) and (c) above. So distribution of DeCSS will be illegal.
If I remember correctly, this is exactly what the MPAA is arguing in the
DeCSS case, and they are winning so far.

> As far as I know, the whole DeCSS thing is still not decided for sure.
> But I do not think that this EU directive will change much here.

The DeCSS case is not settled in the USA. I don't know of any case in Europe.
After this Directive turns into national laws we might have some lawsuits
around here.

I don't want to copy the movies, just to watch them in my operating system of 
choice using only free software. I have the right to use only free software.
I don't accept that the only option for me to watch the movies is to use
some non-free DVD player approved by the MPAA and friends.

I think we should lobby the governments in member countries to make some kind
of explicit exception to free software when they are writing the national law
to comply with this Directive.

-- 
Rúben Leote Mendes - ruben at nocturno.org
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