08-24-2012, 03:28 AM | #61 | |
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"The phrase is derived from the medieval Latin legal principle exceptio probat regulam in casibus non exceptis ("the exception confirms the rule in cases not excepted"), a concept first proposed by Cicero in his defence of Lucius Cornelius Balbus.[1] This means a stated exception implies the existence of a rule to which it is the exception. The second part of Cicero's phrase, "in casibus non exceptis" or "in cases not excepted," is almost always missing from modern uses of the statement that "the exception proves the rule," which may contribute to frequent confusion and misuse of the phrase." And so the fact the the Librarian of Congress has given permission for personal use of DRM removal software for ebooks in a certain case demonstrates that there is a general prohibition on doing so. Since two of the US appeal courts have given different rulings on the matter, it's plainly not clear enough, and it may be that the US Supreme Court will eventually decide the matter. Or, perhaps, the law will be repealed.... or the horse will sing. Last edited by pdurrant; 08-24-2012 at 03:31 AM. |
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08-24-2012, 08:49 AM | #62 | |
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. Last edited by ApK; 08-24-2012 at 08:51 AM. |
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08-24-2012, 01:25 PM | #63 |
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Even thinking about how to crack DRM would likely be banned if big media had their way.
I'll point out (for the OP) that if he is given access to the book givers' account (username/password), he could likely use the tools. Or in the case of B&N books, you only really need the credit card on the B&N account at the time of download to remove the DRM (this is why I consider B&N's variant the least offensive of the DRM schemes). That said, talking about this too much is against forum rules and maybe I've strayed over that limit. If so I'm sorry. |
08-24-2012, 02:15 PM | #64 | |
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Last edited by geekmaster; 08-24-2012 at 02:19 PM. |
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08-24-2012, 02:31 PM | #65 | |
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If any one else thinks so, they'll probably post one of these: |
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08-24-2012, 03:25 PM | #66 |
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As a lawyer, can you say if Fair Use is trumped by the DMCA or is Fair Use still valid since it came before DMCA and nothing in the DMCA says it trumps Fair Use?
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08-24-2012, 04:53 PM | #67 | |
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08-24-2012, 04:59 PM | #68 | |
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08-25-2012, 10:37 AM | #69 | |
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On the second point, you should have remarked on my marvelously clear exposition & deep wisdom, but aside from that, you penetrated to the heart of the matter. |
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08-25-2012, 10:39 AM | #70 | |
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But I was challenged on the basis for my assertions, and I replied. That's legit, and should not be responded to by a weak version of the ad hominem argument. |
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08-25-2012, 04:51 PM | #71 | ||||
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But even were that not the case, that's merely an argument, and often fails. For example, in the recent Obamacare decision, it turned out that the individual mandate was a "tax" for purposes of assessing its Constitutionality, but not a "tax" for purposes of the Anti-Injunction Act. (In essence, Justice Roberts applied the second part of Cicero's phrase.) But what you are really trying to do is draw a negative implication from an administrative ruling. Most of the time, if you actually read the ruling, you find that the administrator is very careful to make it clear that such implications not be drawn, because they work both ways, sometimes with unforeseen consequences. Quote:
Anything you read in a court opinion which appears to you to address the matter either doesn't, or if it does, does so merely as dicta, which has no legal standing. If I were writing a brief to a court on the question we are talking about here, and tried to tell the court that any of these cases bear on our question, the judge would think I wasn't a very good lawyer. There are some very few judges whose opinions are so respected or important that other judges will pay attention to their dicta (for example, Judge Posner on the 7th Circuit Court of Appeals) but none of the judges on these cases. And if you think about it, you will realize that no court will ever address the question. There is simply nothing to be gained by a publisher bringing a lawsuit against an individual for stripping DRM from an ebook which the individual has legally acquired, and where the only use of the stripped file is personal use. But there is a hell of a lot for the publishers to lose. Right now, they have everybody buffaloed into believing that it's illegal to strip DRM, anywhere, any time. Why would they risk getting a court opinion to the contrary? Quote:
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08-25-2012, 05:07 PM | #72 | |
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But the law does not make it illegal to acquire DRM stripping tools, so if you acquire them, what Scalzi & the publisher are doing is telling you that they won't sue you for stripping. They could still actually sue you, but they would lose (1) because it's not illegal for you to strip the DRM from a book you legally acquired from them, and (2) even if that turned out not to be true, you could defend yourself under a legal doctrine called "detrimental reliance," basically meaning that you relied on their promise so they can't take it back. Technically speaking, Scalzi might be violating the law for linking to the tools, since he's helping to distribute them in a commercial context. Certainly if I were his lawyer, I would tell him not to link. The way this should be handled is for everyone who bought a DRMed ebook to be sent a new, DRM free copy by the publisher. Last edited by Harmon; 08-25-2012 at 05:50 PM. |
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08-25-2012, 05:32 PM | #73 | |
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08-25-2012, 05:45 PM | #74 | |
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It's just like Prohibition, where you could make all the booze you wanted in your own house, and drink it yourself - in your own house. But couldn't sell it to your buddy in your own house, although you could give it to him for free - in your house. But not if you gave it to him for free, but were running a restaurant in your house and sold him a meal to accompany his drink. And not if you were renting a room to someone, and providing drinks and meals as part of the deal. And you had to pay tax on the booze, no matter whether you drank it yourself or illegally sold it or gave it away. Think about that in terms of stripping DRM. It's the New Prohibition! Last edited by Harmon; 08-25-2012 at 05:51 PM. |
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08-25-2012, 08:35 PM | #75 | ||
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I tend to agree with you that such a case is unlikely to ever come up, but I'd prefer certainty and less grey. Quote:
So, I think you're wrong about DRM, and Prohibition too. The circumvention provision in the DMCA says nothing about a limited scope of who it applies to. And your only offered reason for stating otherwise -- "It's a lawyer thing, you wouldn't understand" -- is worthless. On Prohibition, at least, if you are correct, certainly you can provide some evidence, if not explanation? I am curious, however, about the part of the DMCA that says something about the law not infringing on other other rights..... |
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azw, drm, kindle |
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