1201 "effectively controls access" (was Re: password-cracking by journalists...)

Karsten M. Self kmself at ix.netcom.com
Mon Jan 21 18:06:17 EST 2002


on Mon, Jan 21, 2002 at 09:55 AM -0500, Trei, Peter (ptrei at rsasecurity.com) wrote:
> > Karsten M. Self[SMTP:kmself at ix.netcom.com] writes:
> > 
> > Note that my reading the language of 1201 doesn't requre that the work
> > being accessed be copyrighted (and in the case of Afghanistan, there is
> > a real question of copyright status), circumvention itself is
> > sufficient, regardless of status of the specific work accessed:
> 
> >    17 USC 1201(a)(1)(A):
> >    No person shall circumvent a technological measure that
> >    effectively controls access to a work protected under
> >    this title.
> 
> I'm sure I'm picking nits here (and I praise God every day that
> I Am Not A L*wy*r), but what does 'effectively' mean? If it can be
> broken, was it effective? What level of work is required to make
> it an 'effective technological measure'? If the standard is 'anything,
> including rot13', then why is the word present in the rule at all?
> 
> Technological measures can range from violating the CDROM
> standard and introducing deliberate errors to confuse some
> readers, all the way up to full real-time, online, 3-factor 
> authentication.
> 
> The inclusion of the word 'effectively' presumes the existance of 
> 'ineffective' technological measures, which it would be no crime
> to circumvent. Where, then, is the distinction? 
> 
> I'm reminded of a humorous button I've seen at some SF
> conventions: "Anything not nailed down is legally mine. Anything
> I can pry up wasn't nailed down in the first place."

I'd taken some time to run 'round that logical circle myself.  I believe
the NY 2600 case dealt with this issue.  Kaplan, at least, wasn't
convinced.  I've attached Wendy Seltzer's comments to the dvd-discuss
list.

Peace.

-- 
Karsten M. Self <kmself at ix.netcom.com>        http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?              Home of the brave
  http://gestalt-system.sourceforge.net/                    Land of the free
We freed Dmitry! Boycott Adobe! Repeal the DMCA! http://www.freesklyarov.org
Geek for Hire                      http://kmself.home.netcom.com/resume.html
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