Comment Fair Use, Section 117(a), and the Cohen Doctrine (Score 3) 895
Disclaimer: I'm not a lawyer.
And I also can't really speak to the merits of the charge of misappropriation of trade secrets. Note that trade secrets as an area of law is largely defined at the state level, so you'll need to look into California law.
Having said that, there is some case law in the 9th circuit (which includes California) that may be positive.
Although the charge is misappropriation of trade secrets, it seems that the underlying complaint is an enablement of violation of copyright. If this underlying complaint can be answered then the misappropriation is harmless.
I argue that the defendants have a right to possession of the DeCSS software under section 117(a) of Title 17 of the US Code. Briefly, that section of law limits the exclusive right of copyright holders of software; owners have the explicit right to make backup copies for their own archival purposes.
This was has been tested in case law, and unfortunately I don't have my law books handy, but a case in the mid-eighties concerned a maker of a disk-copying software sued by a maker of copy-protection software. The defendant successfully argued that since owners have a right to back up software, and they could not do so without his (or similar) product, his product was legal.
This is the tricky step: DVDs contain software and data. I argue that the right to backup software extends to the entire disk, including data. As a broader claim, we can fall back on fair use; since DSS stops us from fair use of the movie, we have a right to employ software that gives us back those rights.
This theory is discussed in Lessig's excellent book _Code and Other Laws of Cyberspace_. A legal theorist (not related) named Cohen says that we have the right to hack copy-protection schemes that violate fair use. This is known as the Cohen Doctine.
And I also can't really speak to the merits of the charge of misappropriation of trade secrets. Note that trade secrets as an area of law is largely defined at the state level, so you'll need to look into California law.
Having said that, there is some case law in the 9th circuit (which includes California) that may be positive.
Although the charge is misappropriation of trade secrets, it seems that the underlying complaint is an enablement of violation of copyright. If this underlying complaint can be answered then the misappropriation is harmless.
I argue that the defendants have a right to possession of the DeCSS software under section 117(a) of Title 17 of the US Code. Briefly, that section of law limits the exclusive right of copyright holders of software; owners have the explicit right to make backup copies for their own archival purposes.
This was has been tested in case law, and unfortunately I don't have my law books handy, but a case in the mid-eighties concerned a maker of a disk-copying software sued by a maker of copy-protection software. The defendant successfully argued that since owners have a right to back up software, and they could not do so without his (or similar) product, his product was legal.
This is the tricky step: DVDs contain software and data. I argue that the right to backup software extends to the entire disk, including data. As a broader claim, we can fall back on fair use; since DSS stops us from fair use of the movie, we have a right to employ software that gives us back those rights.
This theory is discussed in Lessig's excellent book _Code and Other Laws of Cyberspace_. A legal theorist (not related) named Cohen says that we have the right to hack copy-protection schemes that violate fair use. This is known as the Cohen Doctine.
