Re: [d@DCC] TPM and PCs

From: Keith Rose <kraken.rider _-at-_ gmail.com>
To: "General Copyright Discussions \(questions, organizing, etc\)" <discuss (at) list.digital-copyright.ca>
Date: Sun, 6 Jun 2010 00:57:29 -0400
References: <1275581978.26040.54.camel@el-grande> <346F6410-E1B1-4F82-860E-338EE2BDEB4F@gmail.com> <20100604053035.GA31925@foursquare.net> <201006050753.27616.bob@rsmits.ca> <4C0A9A8F.8050009@flora.ca>

On 5-Jun-10, at 2:42 PM, Russell McOrmond wrote:

>   As to whether independent software is allowed to be interoperable
> with locked media, it looks clear to me that the answer is no.
> Circumventing a technical measure in one piece of software to make it
> interoperable with another piece of software is covered (41.12
> Interoperability of computer programs), but circumventing a technical
> measure applied to content to make it interoperable with software is  
> not.

I'm not so sure.  The interoperability exception does use the phrase  
"computer program", and to a software developer that might seem to  
exclude pure data.  But keep in mind that the audience of a statue is  
a court, not a software developer.  Statutory interpretation involves  
more than conventional dictionary definitions.

There's no a priori reason why "computer program" *couldn't* be  
interpreted to include content.  Words & Phrases Judicially Defined  
says: "A computer program ... is ... a set of instructions for  
controlling the sequence of operation of a data processing  
system ..."  I think one could easily make the argument that metadata  
instructions to control the operation of a DRM system meet that  
definition.  It is by no means a sure winner of an argument, but there  
is at least a basis for it, both technologically and legally.  The  
argument becomes all the more persuasive if one can establish that  
this is consistent with the policy intention behind the language.

Of course that is not to say that I don't agree that explicit language  
would be preferable--clearly it would.  That might even be a winnable  
fight in the policy arena.

KR
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