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Harmon · 12-01-2010, 03:48 PM

[QUOTE=Xenophon;1246775]I'd like to respond to these posts (note that I've left out a whole bunch of others...). Please remember that I am not a lawyer; what I write below is based on my layman's understanding of my possibly-flawed class notes from a graduate seminar on IP issues for Computer Scientists.QUOTE]

Well, if I really WERE a professor, I'd give you an A for that little essay. It's clear to me that you have properly grasped the subject matter.

The only place where your paid-for advice differs from my opinion lies in the question of the distribution of the tools. The reason for that difference of opinion lies in an area that I haven't explored deeply, and your IP lawyer probably has. That area concerns First Amendment protection of speech, and the question is whether computer code (or scripts using that code) amounts to "speech" within the meaning of the Amendment.

IF that is "speech," then the only way to get past the Amendment is to connect the publication of the code or script with actual or implied knowledge that the publication will be used for unlawful purposes. So if I write a script to remove DRM, and put it on the internet for free, and do my best to inform people that the script can only be legally used to strip DRM from personally owned files, I can probably escape the penalties contained in the DMCA. On the criminal side, I believe that the prosecution would have to establish that I actually knew or should have known that a specific person would use my code or script to illegally strip DRM. On the civil side, I think that whomever was suing me would have to have a specific situation in which my code was used illegally, and that I didn't do anything to let users know that such use would be illegal.

Because if the code or script is "speech," and there is a lawful use for it, I can't be held liable for any unlawful use - which is, I believe, the basic principle in the Betamax case.

BTW, I suspect that the reason the lawyer wanted your quarter is so that she could not be interrogated by the authorities or in a civil lawsuit about the advice she was giving, since it would be protected by the attorney-client priviledge. Therefore, each reader of this post owes me a quarter for the advice contained herein. Next time you are in a McDonalds, drop it in the Ronald McDonald House spare change box. (You eat at McDonalds now & then. You KNOW you do...)

12-01-2010, 03:48 PM	#99
Harmon King of the Bongo Drums Posts: 1,630 Karma: 5927225 Join Date: Feb 2009 Device: Excelsior! (Strange...)	[QUOTE=Xenophon;1246775]I'd like to respond to these posts (note that I've left out a whole bunch of others...). Please remember that I am not a lawyer; what I write below is based on my layman's understanding of my possibly-flawed class notes from a graduate seminar on IP issues for Computer Scientists.QUOTE] Well, if I really WERE a professor, I'd give you an A for that little essay. It's clear to me that you have properly grasped the subject matter. The only place where your paid-for advice differs from my opinion lies in the question of the distribution of the tools. The reason for that difference of opinion lies in an area that I haven't explored deeply, and your IP lawyer probably has. That area concerns First Amendment protection of speech, and the question is whether computer code (or scripts using that code) amounts to "speech" within the meaning of the Amendment. IF that is "speech," then the only way to get past the Amendment is to connect the publication of the code or script with actual or implied knowledge that the publication will be used for unlawful purposes. So if I write a script to remove DRM, and put it on the internet for free, and do my best to inform people that the script can only be legally used to strip DRM from personally owned files, I can probably escape the penalties contained in the DMCA. On the criminal side, I believe that the prosecution would have to establish that I actually knew or should have known that a specific person would use my code or script to illegally strip DRM. On the civil side, I think that whomever was suing me would have to have a specific situation in which my code was used illegally, and that I didn't do anything to let users know that such use would be illegal. Because if the code or script is "speech," and there is a lawful use for it, I can't be held liable for any unlawful use - which is, I believe, the basic principle in the Betamax case. BTW, I suspect that the reason the lawyer wanted your quarter is so that she could not be interrogated by the authorities or in a civil lawsuit about the advice she was giving, since it would be protected by the attorney-client priviledge. Therefore, each reader of this post owes me a quarter for the advice contained herein. Next time you are in a McDonalds, drop it in the Ronald McDonald House spare change box. (You eat at McDonalds now & then. You KNOW you do...)