Subject: Re: [may be junkmail -pobox] Re: Will freeware change the business forever?
From: John Gilmore <gnu@toad.com>
Date: Sat, 27 Jun 1998 17:55:49 -0700

> - The recent WIPO treaty illegalizing breaking copy protection, even if
>   the things you do after breaking the copy protection are legal (under
>   fair use, because the information is public domain, or whatever)

This characterization is incorrect.

The WIPO treaty only requires that countries make it a crime to break
a copy protection system *that is used to violate copyrights*.  If you
break the copy protection and you don't violate any copyrights (e.g.
you engage in fair use, or get access to your own material, or to
material that you have rights to) then there's no issue.

HOWEVER...

The leading bill that would *implement* the WIPO treaty also does a bunch
of things that the treaty does not require.  They succeeded in confusing
you into thinking that we'd have to reject the WIPO treaty in order to
reject the provisions that:

	*  Make it a crime to break any copy protection, regardless of
	   whether any copyrights were violated
	*  Make it a crime to *sell* or *possess* devices or software
	   that can break copy protection.
	*  Make it a crime to reverse-engineer or cryptanalyze an
	   intellectual property security system.

This horrible bill is HR 2881.

A reasonable bill, that simply implements the WIPO treaty, and doesn't
create any new thoughtcrimes, is HR 3048.

I should also add that my experience with the 1992 Audio Home
Recording Act, which required copy-protection in digital audio
recorders (DAT and MiniDisc) is that the manufacturers deliberately
build the devices so that they apply copy-protection even to brand-new
original material, regardless of the wishes of the copyright holder.
I recorded my brother's wedding on one, and was unable to make copies
for my family without using a "circumvention device".  Thus if it
becomes illegal to circumvent copy protection EVEN TO GET AT YOUR OWN
INFORMATION, we'll have another regime where the law and reality have
diverged instead of converged.

(The apparent reason they build things this way is that they are much
more concerned if even ONE copyrighted audio song is copied, than if
THOUSANDS of original works can't be copied by original musicians.
They figure that the people who buy the DAT or MD drive won't know
that it screws up their ability to originate works, until they've
already bought it and it's too late.)

	John