> The second is that circumvention tools are prohibited.
I don't think "substantial non-infringing uses" should be a standard for tools. These tools are not infringing at all. They do not contain or distribute copyrighted content themselves. In fact they can be small keys, or information tangentially related to the DRM scheme. They can also be various things in various contexts.
I think the entire "anti-circumvention tools" part should be removed, period. It's not even helpful for its original purpose and probably unconstitutional (the government cannot criminalize instructions for violating the law). It's also being abused.
Keys do not always have "substantial non-infringing uses" by the way. They can be unique enough to skate the line. And tools which address a general type of DRM (enormous research value) would also be criminalized, which would not meet that standard if the tools were explicit enough.
Hell, if I released the circumvention tools for my own DRM (intended to allow others to access the protected content) I would be violating that standard.
Maybe you're right about the treaty re: circumvention tools. I don't see it either.
>Keys do not always have "substantial non-infringing uses" by the way.
I think fair use should be a substantial non-infringing use. The phrase comes from Sony Betamax, right?
>Hell, if I released the circumvention tools for my own DRM (intended to allow others to access the protected content) I would be violating that standard.
How so? Accessing protected content with the copyright holder's permission is not infringement, so there's your substantial non-infringing use.
"Substantial non-infringing uses" is the standard the court set for things which could subject you to "secondary liability" for acts of infringement. The tools are legally separate concepts (which is why the DMCA codified them), and the first amendment traditionally prevents the government from criminalizing speech which could assist others in breaking the law.
I didn't waive my copyright just because I released circumvention tools for my own DRM scheme.
>I didn't waive my copyright just because I released circumvention tools for my own DRM scheme.
So your scenario is that you wrap your work in DRM and you release a circumvention tool without giving anyone permission to use it to copy your work and it doesn't have any other substantial non-infringing uses (e.g. can't be used for any substantial fair use). I'm no fan of the prohibition on circumvention tools, but I don't think that's the scenario that worries me. A party doing that looks to be engaged in some kind of entrapment scheme.
>"Substantial non-infringing uses" is the standard the court set for things which could subject you to "secondary liability" for acts of infringement. The tools are legally separate concepts (which is why the DMCA codified them)
I understand that it isn't the standard that applies to circumvention tools right now. But it seems like an exemption that ought to apply if the prohibition on circumvention tools is to stand at all. And amending the law to that effect is likely going to be a lot easier politically than repealing the prohibition in its entirety. Can you suggest some other language that would be preferable? (I mean obviously "get rid of it altogether" would be preferable.)
> the first amendment traditionally prevents the government from criminalizing speech which could assist others in breaking the law.
I think they addressed this in the 2600 DeCSS case.[1] Something like: Code is speech, but it's also functional, and you lose the First Amendment argument on the functionality. Which I'm not really convinced of the logic of (isn't all speech "functional" in that it provides information that allows you to do something with it?), but that's apparently the counterargument you'll get.
I don't think "substantial non-infringing uses" should be a standard for tools. These tools are not infringing at all. They do not contain or distribute copyrighted content themselves. In fact they can be small keys, or information tangentially related to the DRM scheme. They can also be various things in various contexts.
I think the entire "anti-circumvention tools" part should be removed, period. It's not even helpful for its original purpose and probably unconstitutional (the government cannot criminalize instructions for violating the law). It's also being abused.