QUOTE(d-x-j @ Oct 6 2006, 01:06 AM)
Fair use under United States law
The legal concept of "copyright" was first ratified by the United Kingdom's Statute of Anne of 1709. As room was not made for the authorized reproduction of copyrighted content within this newly formulated statutory right, the courts gradually created a doctrine of "fair abridgement", which later became "fair use", that recognized the utility of such actions. The doctrine only existed in the U.S. as common law until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107, excerpted here:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The Supreme Court of the United States ruled in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), that fair use is an affirmative defense to copyright infringement. This means that if the defendant's actions do not constitute an infringement of the plaintiff's rights (for example, because the plaintiff's work was not copyrighted, or the defendant's work did not borrow from it sufficiently), fair use does not even arise as an issue. However, it also means that, once the plaintiff has proven (or the defendant concedes) that the defendant has committed an infringing act, the defendant then bears the burden of proving in court that his copying should nonetheless be excused as a fair use of the plaintiff's work.
Because of the defendant's burden of proof, some copyright owners frequently make claims of infringement even in circumstances where the fair use defense would likely succeed in hopes that the user will refrain from the use rather than spending resources in his defense. This type of frivolous lawsuit is part of a much larger problem in First Amendment law; see Strategic lawsuit against public participation.
The law in the United States is executed based upon precedence. In other words, how the last judge to make a ruling interpreted the law. This copyright issue has been flip-flopping for decades; the DMCA is an attempt to make it very clear to judges how they should rule (the ruling you cite is from 1994, the DMCA was approved in 1998).
The Divineo decision is just the latest way to announce to the world (specifically, the U.S.) that the law is no longer fuzzy. Once you pass something like the DMCA, you can't go back to the past and bring up examples of "fair use" anymore; that's the point of passing new laws like the DMCA- to get rid of the confusion.
QUOTE(d-x-j @ Oct 6 2006, 01:14 AM)
the DCMA does not distinguish between the two. it gives many variables as to what is and is not legal under fair use but does not separate sofware that has/ does not have anti piracy in it. it seems that this may be a hole in the laws. ive been reading through it and i cant find any separation between protected and unprotected software. unless im overlooking something, this means M$ and any other company that publishes software does not have the right to prevent backups from being made.
Some excerpts:
QUOTE
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.
That's the serial number vs. real copy protection issue.
QUOTE
`(ADDITIONAL VIOLATIONS- (1) No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that--
`(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;
.
And that's the people selling modchips. Notice the "import" reference, too.
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Topic: Mod Chip Sellers Ordered to Pay 9M USD in US Piracy Case (Read 629 times)