[Fsfe-ie] EU direcitves being rushed into Ireland before presidency

Ian Clarke ian at locut.us
Thu Dec 11 13:01:49 CET 2003

Ben North wrote:
> It's tricky.  Thinking about DeCSS, for example, it would be difficult
> to argue that it's not a protection-defeating device.  I think our point
> might be that it should be legal to own (and publish, etc.) this device
> because it has substantial non-infringing uses.  Banning a tool because
> it could be used to do something illegal seems overreaching.

Indeed, but the strategy of making the tools for circumventing DRM 
illegal became the copyright industry's priority once they realized that 
DRM could always be circumvented.  the idea of banning a tools because 
it could be used to do something illegal is central to both the DMCA and 
the EUCD's anti-circumvention provisions.

>>Or is David O'Callaghan right in pointing out that legal access to works
>>cannot be blocked.

The problem is that with the EUCD it is not the law that is blocking 
legal access to works, rather the law is protecting the technology that 
is blocking legal access to works.  By adding this layer of indirection 
the DMCA successfully did an end-run around fair use in the US, and the 
EUCD appears to have the same intention here.

Now, we could argue that if the law is protecting technology that blocks 
legal access to works, then the law is effectively blocking legal access 
to works.  IANAL but I don't fancy our chances if we are relying on the 
courts to make this logical leap during Ireland's first EUCD court case. 
  Rather, our best chance is to nip it in the bud by making this clause 
specifically *not* apply to technology which can be used to enable legal 
access to copyrighted works.  I believe this to be the effect of my 
suggested rewording that I give elsewhere in this thread, but again, IANAL.

> In general I think we might be better off with just trying to explain as
> succinctly as possible what it is we're worried about, rather than
> trying to suggest new wording.  We don't want to pretend to be experts
> in drafting legislation when we're not.  (At least, I'm not; maybe
> others on the list are more qualified.)  Maybe our best bet is to press
> the point that the set of permitted acts is part of the "copyright
> bargain" that the public has made with rights-holders, and
> rights-holders should not be allowed to "trump" those permissions by
> using protection-measures.

I sympathize with the suggestion that perhaps we shouldn't portray 
ourselves as amateur legislation drafters, but on the other hand, 
sometimes point out a problem and offering a solution can be more 
effective than just pointing out the problem itself.


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