


From: Thomas Phinney <tphinney@adobe.com>
Date: Mon, 10 Nov 2008 22:10:20 -0800
To: John Daggett <jdaggett@mozilla.com>
Message-ID: <6D096C8718FA4241B934489A5E1CE1420118D9B1FA02@nambx04.corp.adobe.com>
Disclaimer: I'm not a lawyer, and I'm not trying to give you or anybody on the list legal advice.

John Daggett wrote:

> The access control mechanism is intended as a general mechanism for
> handling cross-site requests.  It's not designed to be mechanism for
> enforcing copyright restrictions, so I don't think it's as easy to say
> that it falls under the circumvention provisions of laws like the
> American DMCA.  The use of root strings is clearly intended as a
> copyright protection mechanism.

I don't see anything in the relevant section of the DMCA that makes *intent* of copyright protection relevant. The relevant section of the DMCA reads "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Later, the DMCA says, "As used in this subsection -
(B) a technological measure ''effectively controls access to a work'' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work."

I'm still not clear that access control would not be covered here. Maybe so.

But whether it's access control, root strings, or even font file obfuscation, browser creators pretty safe, as the browser is not "primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work," has lots of other commercially significant purposes or uses, and wouldn't be marketed as a circumvention mechanism. See Section 1201(a)(2).

BTW, to get to one underlying concern: has your, or anybody's, lawyer actually expressed the opinion that having a third party post a patch to a browser that gave the browser a circumvention capability would create a problem for the browser vendor under the DMCA? Because even if it happened, I am not getting why it would be an issue, based on 1201(a)(2).


Received on Tuesday, 11 November 2008 06:12:22 GMT
