Re: It's legal to crack Apple II copy protection

[russotto@grace.speakeasy.net (Matthew Russotto)]

In article <20031030132653.05505.00000017@mb-m26.aol.com>,
Michael J. Mahon <mjmahon@aol.com> wrote:
>Matthew Russotto wrote:
>
>>In article <20031029135053.28166.00000312@mb-m27.aol.com>,
>>Michael J. Mahon <mjmahon@aol.com> wrote:
>>>Matthew Russotto wrote:
>>>
>>>>In article <apple22-DCD232.22544428102003@zeus-ge0.rdc-kc.rr.com>,
>>>>Greg Buchner  <apple22@mn.rr.com> wrote:
>>>>>
>>>>>ââ??¬Ã?  Computer programs or video games that use obsolete formats or 
>>>>>hardware 
>>>>>
>>>>><Should include anything Apple II related...>
>>>>
>>>>Yes, but the exemption only applies to the act of circumvention in
>>>>order to gain access to the work, which is damn-near unreachable
>>>>anyway.  It does not apply to trafficking in circumvention devices
>>>>(e.g. Copy II Plus) nor does it apply to circumvention in order to
>>>>copy the work, nor does it apply to any actual copyright violation.
>>>
>>>But it does seem to open the door for people to defeat the copy
>>>protection on obsolete works to archive them for future use--
>>
>>As long as they don't make or acquire any tools to do so.  And don't
>>make any copies when doing it.  Only the act of circumvention to
>>obtain access is permitted.  Circumventing to make a copy (e.g. to
>>archive the work) is not permitted.  
>>
>>>a very critical requirement for the preservation of digital works which
>>would
>>>otherwise be locked into failing or obsolete media.
>>
>>There's still no way to do it without breaking a few laws.
>
>Matthew, are you a lawyer?

Only the jailhouse variety.

>My non-lawyer understanding is that an individual or organization
>can now do anything to circumvent copy protection that it desires,
>as long as it does not "traffic" in such tools, meaning offering them
>for sale.

No.  To "traffic" includes giving them away as well as offering them
for sale.  And if you create the tool yourself, there's also a
"manufacture" provision.

>If they acquired them commercially before the DMCA, then that's
>fine, too (no _ex post facto_ laws).

Yes, this seems the only loophole.

>And archiving copyrighted material has _always_ been (and 
>continues to be) legal--the only legal obstacle was circumvention,
>which is now exempted for obsolete platforms--therefore using this
>circumvention to make archival copies is a perfectly legal exercise
>of fair use (at least until a court finds otherwise).

Here's where you get to a VERY fine point of the law.  There are two
parts of the DMCA which forbid circumvention.  One forbids
circumvention to obtain access.  The other forbids circumvention to
exercise some exclusive right of the copyright holder (which would
include copying).  The exemption covers the former but not the
latter.  So while making the archival copy is legal, and
circumventing the protection to obtain access is legal, circumventing
the protection to make the archival copy is not legal.


-- 
Matthew T. Russotto                            mrussotto@speakeasy.net
"Extremism in defense of liberty is no vice, and moderation in pursuit
of justice is no virtue."  But extreme restriction of liberty in pursuit of 
a modicum of security is a very expensive vice.