Ross's TCPA paper

[Peter D. Junger]

Sandy Harris writes:

: "Peter D. Junger" wrote:
: 
: > : > There is not even social opprobrium; look at how eager
: > : > everyone was to look the other way on the question of whether the DeCSS
: > : > reverse engineering violated the click-through agreement.
: > :
: > : Perhaps it did, but the licence agreement was unenforceable.  It's
: > : clearly reverse engineering for interoperability (between Linux and DVD
: > : players) so the legal exemption applies.  You can't escape the exemption
: > : by contract.
: 
: I certainly agree that that /should/ be the case. However, you assert
: that it /is/ the case. Under what country's laws? Can you cite test
: cases?

I didn't quite assert that it is the case, although it should be if
one reads the applicable provisions of the copyright act and the
sales article of the Uniform Commercial Code.  As to a case, there
is one out of California involving Adobe where a federal district
court went a long way toward holding that recently.

: > : Now, you might say that morally he should obey the agreement he made.
: 
: I'd claim that he made no agreement; a click-through license is not a
: valid contract. If I recall correctly, a Louisiana court did rule that
: way in a well-publicised case, and I've heard several Canadians assert
: that at least some are invalid under our law. 
: 
: > ... The important point
: > is not, however, that click-through agreements are probably
: > unenforceable; the important point is that people---at least
: > those people who think that they own their own computers and
: > the software copies that they have purchased---generally
: > believe that they should be unenforceable.
: 
: However, what people generally believe has little bearing in law.

But it has everything to do with what people believe is moral.

: 
: The question is whether courts -- which courts in which countries
: and on what grounds -- will deem them enforcable and therefore
: will enforce them when asked to do so. It does not matter much
: what you believe if a court can be convinced you're violating a
: law. They have quite effective ways of enforcing such judgements.
: 
: Of course, there are some good legal arguments that click-through
: agreements should not be enforcable, and that contracts should not
: be allowed to restrict reverse engineering. 
: 
: For that matter, there's a good argument that the DVD CCA is an 
: illegal conspiracy to restrict competition and manipulate the
: markets, and should be prosecuted as such. e.g. the Australian
: Competition Board has demanded an explanation of region codes:
: 
: http://www.accc.gov.au//fs-search.htm
: 
: To quote two speeches from that site:
: 
: Difficulties between the pro-competitive community and Intellectual Property
: Mr Ross Jones, Commissioner
: Australian Competition & Consumer Commission
: 
: | Australian consumers are currently suffering from an international cartel t
: hat
: | restricts their access to digital versatile discs (DVDs). The cartel, heade
: d
: | by major film studios in agreement with the manufacturers of DVD players, h
: as
: | divided the world into regions. This ensures that DVDs on sale in Australia
: | will only function on a DVD player licensed for region 4 that includes Aust
: ralia.
: | The stated aim is to protect cinema ticket sales by preventing people viewi
: ng
: | movies on DVDs in their homes before distribution to cinemas. The Australia
: n
: | subsidiaries of US film companies have been requested by the Commission to 
: | explain their actions. It will then decide what action can be taken.
: 
: Globalisation and Competition Policy
: Professor Allan Fels, Chairman
: Australian Competition & Consumer Commission
: 
: | The Commission has requested the Australian subsidiaries of United States f
: ilm
: | companies to explain why their regional restrictions on DVDs should not be 
: deemed
: | a breach of the Trade Practices Act 1974. ...
: |
: | The Commission believes RPC is anti-competitive with Australian consumers l
: acking
: | a choice of DVD videos and possibly paying higher prices.
: 
: The quoted documents are a couple of years old. Does anyone have
: an update? 
:  
: A few of us have been trying, without much success, to convince the
: Canadian Competition Bureau to prosecute these conspirators. It might
: be worth a shot in other countries.
: 
: > (And in the
: > actual case involving Linux and DVD players there was no
: > agreement not to circumvent the technological control measures
: > in DVD's; the case was based on the theory that the circumvention
: > violated the Digital Millenium Copyright Act.)
: 
: Correct, for the case brought on the East Coast (NY? NJ?) by the
: MPAA. However, the first case, brought in California by DVD CCA,
: did not use the DMCA. It alleged theft of trade secrets, and
: violation of the license agreement.

The East Coast case which was decided against the publisher arose
in the federal district court for New York and was finally decided
the wrong way by the 2d Circuit court of appeals.

The California case arose in the California courts and was
based almost entirely on trade secret claims.  (The only way
that licenses got into the case was the claim that the
original parties who had done the reverse engineering were
bound by license agreements to keep the information secret.)
In that case the good guys have won so far.

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

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