what is software and how it is protected (was Re: GFDL (was: EU Copyright..))

Alceste Scalas tjoad at gmx.it
Mon May 20 13:06:38 UTC 2002

On Mon, May 20, 2002 at 11:01:36AM +0200, Giovanni Biscuolo wrote:
    > Anyway, EUCD clearly states that the whole directive
    > (2001/29/EC) does in no way affect the legal protection of
    > *computer programs* (art. 1: scope).
    > Furthermore, "whereas # 50" states that the legal protection
    > of tech measures (provided in EUCD) should not apply to the
    > protection of tech measures used in connection with computer
    > programs, which is exclusively addressed in that Directive
    > (91/250/EC). Also EUCD should neither inhibit nor prevent the
    > development or use of any means of circumventing a tech
    > measure that is necessary to enable acts to be undertaken in
    > accordance with Art. 5 (exceptions to restricted acts) or
    > Art. 6 (decompiling). [1]

I love to quote myself :-)

    On Mon, May 13, 2002 at 08:00:32PM +0200, Alceste Scalas wrote:
        > On Sat, May 11,  2002 at 04:09:05PM +0200, Arnoud Galactus
        > Engelfriet wrote:
        >     > Do you  think there is a conflict between the 1991
        >     > Directive and the current EUCD?
        > Well, the  91/250/EEC directive  gives users the  right to
        > reverse-engineer  a computer program  for interoperability
        > (article  5  and  6).    This  should  make  it  legal  to
        > reverse-engineer _every_ kind of software --- for example,
        > a piece  of code that "protects" a  copyrighted work, just
        > like an e-book.
        > The EUCD was  written to make the latter  kind of activity
        > illegal --- and, of course,  it contains a bit of trickery
        > to   forbid    the   reverse-engineering   of   "effective
        > technological measures," without formally conflicting with
        > the 91/250/EEC directive.  More in detail:
        >     * at the beginning (paragraph  50) it is said that the
        >     91/250/EEC   directive  still   applies   to  computer
        >     programs: you can circumvent a "technological measure"
        >     if   it  protects   a   program  that   you  want   to
        >     reverse-engineer;
        >     * but what  happens when a  "technological measure" is
        >     not  applied  to programs,  but  to other  copyrighted
        >     works?  Paragraphs 6.1 and  6.2 say that it is illegal
        >     to circumvent  it and/or help  other people to  do the
        >     same;
        >     * finally, paragraph  6.3 defines these "technological
        >     measures"  in a way  that is  not strictly  related to
        >     software.    It   makes   the   91/250/EEC   directive
        >     irrelevant, and you  are forbidden to reverse-engineer
        >     a "technological measure" when  it is used to protect,
        >     for example, a DVD, or an e-book.

However, please note that I'm not a lawyer...

    > It seems that in USA, with DMCA, the situation is a little bit
    > different.

The "technological protection measures" (TPM) issue seem to be quite
the same both in EUCD and DMCA...  The DMCA contains a more detailed
list of exemptions  to the prohibition to circumvent  TPMs, but none
of  these   really  gives  any  right  to   users,  researchers,  or
developers.  I'm still reading the DMCA carefully though...

    > [1] I argue that, for example, DeCCs (please forget
    > upper/lowercase) should be legal in Europe even with EUCD
    > enacted. Where I am wrong!?!?

The DVD encryption is used to make only the "authorized" DVD players
capable of  reading the contents.   In order to be  "authorized" (i.
e.   obtain   a  decryption   key)  to  create   a  DVD   player,  a
software/hardware producer  must assure that its  product won't make
copies of the DVD content, and will respect the DVD "zoning" code.

So, the  DVD encryption is a technical  copyright protection measure
as defined  by 6.3 of EUCD.   The DeCSS (or  any other circumvention
tool)  will be  illegal if  the EUCD  is ratified  by the  EU member


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