Subject: Re: UCITA v. DMCA
From: "Karsten M. Self" <kmself@ix.netcom.com>
Date: Tue, 19 Oct 1999 12:59:11 -0700

Thanks, Mark.

FSB:  this is one informed opinion on the matter.

Mark Lemley wrote:
> 
> > Richard Stallman wrote:
> > >
> > > Karsten Self wrote:
> > > >
> > > >  Despite the tangle of influences, I also think that free software's
> > > >  tools for ensuring access to its works are actually helped, rather
> > > >  than hindered, by laws granting more and stronger powers to copyright
> > > >  holders through both copyright and licensing law revisions.  I don't
> > > >  see us wanting or requesting these changes, but we can certainly
> > > >  utilize them.
> > >
> > > Not necessarily.  I don't think UCITA would help us, even in minor and
> > > useless ways.  My understanding is that the extra powers given UCITA
> > > would not apply to the methods we normally use to distribute free
> > > software, such as a tar file on an ftp server.  (I am not entirely
> > > certain of this.)
> > >
> > > In any case, we have very strong reasons to oppose UCITA.
> > >
> > > 1. It would provide a basis to prohibit reverse engineering of
> > > proprietary software, which we *need* to be able to do.
> >
> > Isn't this mitigated by the DMCA's explicit permission to
> > reverse-engineer software?  Or does the formerly noted distinction
> > between "owener" and "licensee" render this void?
> >
> > If UCITA takes away what DMCA gives, then the DMCA being Federal law
> > preempts UCITA (state law).  However if UCITA rescopes the issue outside
> > of copyright ownership, and DMCA doesn't address the issue vis-a-vis
> > licencee's rights, then we've got a real problem.
> >
> ************ 
> 
> I vote for alternative (c) -- you've got a real problem.  The DMCA
> has a very limited exception for certain reverse engineering
> activities.  But that exception applies only within the DMCA -- that
> is, it means the reverse engineer won't be liable for violating the
> anticircumvention regulations.  It doesn't mean they won't be liable
> for copyright infringement, and it certainly doesn't mean they won't
> be liable for breach of contract.
> 
> Now, there is a good argument that no-reverse-engineering provisions
> should sometimes be preempted by federal law, or that federal public
> policy should render them unenforceable.  [I make the latter argument
> at 87 Calif. L. Rev. 111].  But I don't think you can count on this
> happening.  There are some courts (like the 7th Circuit in ProCD)
> that are totally insensitive to the policies behind reverse
> engineering, and they aren't going to go out of their way to preempt
> UCITA if it is passed.
> 
> By far the best thing to do is to kill this hideous law before it gets
> passed.
> 
> Mark A. Lemley         http://www.utexas.edu/law/faculty/mlemley/index.html
> Marrs McLean Professor of Law                   mlemley@mail.law.utexas.edu
> University of Texas School of Law
> Of Counsel, Fish & Richardson, P.C.
> 
> Effective December 1, I will be a Professor of Law at the Boalt Hall
> School of Law, University of California at Berkeley.

-- 
Karsten M. Self (kmself@ix.netcom.com)
    What part of "Gestalt" don't you understand?

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