[Fsfe-ie] EU direcitves being rushed into Ireland before presidency

[Ian Clarke]

Ciaran O'Riordan wrote:
> It defines a "protection defeating device" as being one "which has only
> a limited commercially significant purpose or use other than to
> circumvent any rights protection measure"

There is another dangerous ambiguity here.  What if the device's purpose 
is to "circumvent any rights protection measure" for the purpose of 
allowing fair use/dealing?

The ambiguity is whether the device "circumvent[s] any rights protection 
measure" as a means to an end, or an end in itself.

One interpretation is that a device where the circumvention is an end in 
itself is prohibited, but a device which employs circumvention as a 
means to an end is not.

The second interpretation is that a device is only permitted if it has 
uses which don't involve circumvention at all.

Under interpretation #1 decss would be ok because we could argue that it 
permits circumvention for the purpose of allowing users to play 
legitimately purchased DVDs on Linux.

Under interpretation #2 the only example of something that would be 
protected might be one of those black marker pens which people were 
using to remove the DRM from CDs, since a black marker clearly has uses 
which don't involve circumvention.

Interpretation #1 is good for us, but renders this clause largely 
useless for the copyright industry.

Interpretation #2 is completely useless for us unless we credibly 
believed that the EUCD might be used to go around banning black marker pens.

A rewording to address this problem might be:

 > "which has only a limited commercially significant purpose or use
 > other than to circumvent a rights protection measure to facilitate the
 > infringement of copyright law"

This excludes devices which allow the user to circumvent the rights 
protection measure to exercise their fair use/dealing rights.

Ian.