At 06:49 AM 8/9/03 -0400, David H. Bailey wrote: >I'm not sure it's not illegal, it's just not prosecuted. While >currently that means the same thing (courts have interpreted the law to >allow such use) there could well come a landmark decision by some >maverick judge that reverses previous case law and allows successful >prosecutions. >In any event, it is certainly allowable now, but it is definitely NOT >spelled out in the copyright law or its recent ammendments and changes.
Exactly. In the US, fair use is court-dependent. Here, the lack of legislative establishment of a right doesn't mean it doesn't exist. This is an important part of the US Constitution, which differs from founding government documents in some other countries in that it rarely sets out rights themselves. There were strong arguments that no rights be assigned at all, and it's interesting that the only right given in the body of the Constitution (before the amendments) was copyright (Article I, Section 8). But the Bill of Rights was felt necessary (after some acrimonious debate), but nevertheless with the 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." So the idea of "fair use" was really slow to be codified in Section 107. The original 1984 Betamax case used time-shifting in its decision that the machines didn't engage in contributory infringement. Those are copies for private use, and doesn't quite seem to fit the law. The area remains flexible. Does the absence of specifically 'legal' copy mean it's illegal? http://www4.law.cornell.edu/uscode/17/107.html http://www4.law.cornell.edu/uscode/17/107.notes.html It's a fluid area of law. (Ephermeral copies are also allowed, though that's a transmission issue.) >I wonder how software hacks would fare in a fair-use court case. They're run into the Digital Millennium Copyright Act (DMCA), now under review, I'm happy to say. There is a reverse-engineering clause. Title 17, Chapter 12 Sec. 1201. - Circumvention of copyright protection systems (a) Violations Regarding Circumvention of Technological Measures. - (1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. On the other hand, Sec. 117. - Limitations on exclusive rights: Computer programs (a) Making of Additional Copy or Adaptation by Owner of Copy. - Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. (b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. - Any exact copies prepared in accordance with the provisions of this section may be leased, sold, or otherwise transferred, along with the copy from which such copies were prepared, only as part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be transferred only with the authorization of the copyright owner. So "adaptations" are allowed (that could be read as "hacks", I suppose), but it's illegal to transfer them. So Section 117 and 1201 have already been interpreted to quash hacks, even 'benign' ones. Phew. Dennis >Wish I had the money to afford to lead such a fight! > >Darcy James Argue wrote: >> >> On Friday, August 8, 2003, at 05:24 PM, David H. Bailey wrote: >> >>> My non-lawyer interpretation is that it would still be illegal, >>> although if you own a legal copy that is unhacked, they would have a >>> hard time prosecuting you, just as the record companies can't >>> prosecute people for making cassettes of their legally purchased CDs >>> even though that right is NOT in the copyright law. >> >> >> Actually, that right is widely considered part of fair use. Same goes >> for ripping MP3's from CDs you legally own and transferring them to your >> iPod. Or making a mix CD of your favorite tracks. Or making a second >> CD copy to play in the car. None of this is illegal, provided you are >> the legal owner of the original CD. >> >> - Darcy >> >David H. Bailey >[EMAIL PROTECTED] > > _______________________________________________ Finale mailing list [EMAIL PROTECTED] http://mail.shsu.edu/mailman/listinfo/finale
