May 28, 2003

CSS licensing on manufacturers vs. consumers

[I wrote this for many DMCA/DVD mailing-lists]

On Wed, May 28, 2003 at 08:20:57PM -0400, Seth Johnson wrote:
> >
> IP Justice, EFF and Ernest Miller laid out a lot of the key, essential
> points. Most interesting of all to me was the interchange between Mary Beth
> Peters and Robin Gross on the licensing issue. Peters clearly brings up the
> contention that circumvention involves license violations as if it were a
> bugbear issue and appears totally unprepared for Robin's clear statement
> that these "licenses" do not actually constitute contracts.

I think there, Marybeth Peters was confusing shrinkwrap licenses with the licensing terms of CSS for DVD players : (emphasis added)

MS. PETERS: I had a question about this side of the aisle which had to do with tethered DVDs or space shifting, those kind of things, which appear at points to violate licenses. I just wanted a comment on how you view the various licenses that come attached with a lot of the material in digital form.

She seems to have been thinking of the common "You don't own this, you only license it" boilerplate, and under the impression that applies to DVDs too. Note the spread of the idea that material in digital format is necessarily "licensed". Good reply:

MS. GROSS: [excerpt]
Consumers are not licensees. Consumers do not -- are not parties to any contract. Their rights haven't been restricted legally in any way. The manufacturer of the DVD player and the technology company may have license agreements between them but that's between them.

The consumer is not obligated to follow the agreements in their contracts. They are not a party to those agreements. I'm a little confused when you're saying overriding licenses. People who aren't a party to contracts aren't -- they are not overriding the contract. They are simply not a party. They are engaging in activity outside of the scope of the license.

So she's talking about any contracts binding the DVD player manufactures who have licensed CSS.

However, lest this point be misunderstood, I think it's clear Robin Gross wasn't addressing whether shrinkwrap licenses were valid contracts - that's an entirely different issue.

> There's a lot on this last day that's extremely good. It's the longest
> transcript, but if you want to get a sense of the best stuff that got
> brought out in these hearings, that's the one to read.

I still like my hearing best :-). I think it's got the most "(Laughter.)" moments.

MR. FINKELSTEIN: ... I would also like to say that, for all this talk of the pornography sites, since they were blacklists, they are really bad collections of pornography sites. (Laughter.)

Blog addition - James Tyre pointed out to me this moment in his hearing

MR. KASUNIC: Okay. I have just a couple of questions, mostly for Mr. Metalitz. Mostly we haven't heard him talk as much. And in the interest of time I'm going to censor myself today.

MR. TYRE: You can't do that. You have to speak freely.

By Seth Finkelstein | posted in dmca | on May 28, 2003 11:59 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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