Ross's TCPA paper

Pete Chown Pete.Chown at skygate.co.uk
Wed Jun 26 06:54:19 EDT 2002


Peter D. Junger wrote:

> That isn't the reason why a click-through agreement isn't 
> enforceable---the agreement could, were it enforceable, validlly
> forbid reverse engineering for any reason and that clause would
> in most cases be upheld.

Not in Europe though.  EU directive 91/250/EEC "on the legal protection
of computer programs" makes provision for reverse engineering for
interoperability. In Britain this was incorporated into domestic law by
the Copyright (Computer Programs) Regulations 1992:

http://www.hmso.gov.uk/si/si1992/Uksi_19923233_en_1.htm

See in particular s.50B(4) which the regulations added to the Copyright
Designs and Patents Act 1988.

> (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.)

The American cases were, but the European case of course wasn't.  The
DMCA doesn't apply over here, though we have something similar in the
works.

> > I think lawyers will hate this.
>
> I don't see why we should.  We don't hate the law of gravity
> or the law of large numbers.

You should hate it. :-) It is appropriate for the legislature to decide
which acts are restricted by copyright and which are not.  The DMCA and
similar legislation hands that right to private organisations.  To some
extent anti-trust law guards against the worst abuses, but it is more
appropriate for the boundaries of copyright to be set by our "elected
representatives".

BTW, I have been thinking for a while about putting together a UK
competition complaint about DVD region coding.  No promises that
anything will happen quickly.  On the other hand, if people offer help
(or just tell me that they think it is a worthwhile thing to do) it will
probably move faster.

-- 
Pete


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