>   From: "Trash80"    
   >Distributing makes one liable to lawsuit, or haven't you been paying   
   >attention to all the DMCA takedowns and lawsuits (RIAA, The Pirate Bay et   
   >al) of late. All it would have taken was for one author to have   
   >successfully sued Ira and he could have lost everything (I'm talking   
   >about his house, his assets, etc). While I agree with the general   
   >consensus that 20 year old software should be freely distributable for   
   >non-commercial purposes, that is not the state of current law in most   
   >western nations.   
      
   Legacy systems and their software have been exempt from copyright and   
   copyright infringement for the better part of a year:   
      
      Copyright Office Issues New Set of Digital Millennium Copyright Act   
      ("DMCA") Exemptions in Third Triennial Rulemaking   
      
      By Doug Agopsowicz   
      
      INTRODUCTION   
      
      On November 27, 2006, the Librarian of Congress, on the recommendation   
   of the Register of Copyrights, announced the classes of works subject to   
   the exemption from the Digital Millennium Copyright Act ("DMCA"). The   
   announcement marked the third time that the Librarian of Congress granted   
   a series of exemptions to the DMCA. This third rulemaking resulted in   
   more exemptions being granted than the number granted in the first two   
   rulemakings of 2000 and 2003.   
      
      This third rulemaking also marks a significant change in the way in   
   which the Library of Congress defines a "class of works" exempt from   
   the DMCA, by defining a "class of works" based at least partially on   
   the intended use of the works in addition to intrinsic characteristics of   
   the works.   
      
      In the second rulemaking, the Librarian of Congress doubled the number   
   of classes exempted from the previous rulemaking, exempting four classes   
   of works. Two of the four exempted were substantially similar to the two   
   classes exempted in the first rulemaking of 2000. The two new classes   
   included "computer programs and video games distributed in formats that   
   have become obsolete and which require the original media or hardware as a   
   condition of access" and "literary works distributed in ebook format when   
   all existing ebook editions of the work (including digital text editions   
   made available by authorized entities) contain access controls that   
   prevent the enabling of the ebook's read-aloud function and that prevent   
   the enabling of screen readers to render the text into a specialized   
   format." The Register again recommended rejecting the vast majority of   
   proposed exemptions proposed in 2003 for substantially the same reasons   
   relied upon in 2000, namely because "proponents failed to propose a true   
   particular class of copyrighted works' and failed to demonstrate that   
   users of such works have been or will be adversely affected in their   
   ability to make noninfringing uses of those works."   
      
      The Librarian granted two more exemptions related to obsolete   
   technology, included one exemption directed towards archived versions of   
   obsolete computer programs and video games, and another exemption directed   
   towards obsolete dongle technology. The Librarian granted a fourth   
   exemption for ebooks which closely resembled the exemption granted in   
   2003, a fifth exemption for computer programs in the form of firmware used   
   to lawfully connect to a wireless telephone communication network, and a   
   sixth exemption for sound recordings distributed in compact disc (CD)   
   format, when used for the purpose of good faith testing, investigating, or   
   correcting security flaws and vulnerabilities.   
      
      As indicated by these six exemptions, the Register departed from the   
   methodology used in the previous two rulemaking proceedings and   
   recommended defining a "class of works" based at least somewhat on the use   
   of the proposed class of works. Four of the six classes of works granted   
   in the third rulemaking (other than the dongle and ebook exemptions) are   
   defined at least partially by the intended use of the works. Defending   
   this departure from the previous manner of defining classes of works, the   
   Register explained: "based on the proposals made in the past rulemaking   
   proceedings, proponents had failed to satisfy certain threshold   
   requirements that would have necessitated consideration of whether a class   
   that was primarily defined by reference to a section 102 category of works   
      
      IMPACT AND SIGNIFICANCE OF NEW EXEMPTIONS   
      
      One significant impact of these new exemptions is the limiting effect   
   that the "use-based" definitions have on the four classes of works   
   partially defined by use. In the previous rulemakings, the Register   
   recommended and the Librarian granted exemptions for classes of works   
   which were defined based upon intrinsic attributes of the works   
   themselves. To fall under the protection of these previous exemptions, as   
   long as a user used a copyrighted work which satisfied the intrinsic   
   attributes according to the class definition (e.g., "computer programs and   
   video games distributed in obsolete formats and that require the original   
   media or hardware as a condition of access"), any noninfringing use of the   
   copyrighted work fell outside of the scope of DMCA liability.   
      
      IMPACT OF SECOND EXEMPTION ON ARCHIVAL USE OF LEGACY SOFTWARE   
      
      The second exemption, granting an exemption to computer programs and   
   video games distributed in obsolete formats and that require the original   
   media or hardware as a condition of access, could potentially prove   
   valuable for companies looking to archive old software. The second   
   exemption arose from the need of the Internet Archive, a nonprofit digital   
   library which archives old software and video games, to emulate floppy   
   disk drives in order to "migrate" obsolete software and video games from   
   one hard drive to another. Manufacturers designed floppy disks with   
   "original-only" access controls which prevented access to the contents of   
   the disk unless the disk was loaded into the original corresponding disk   
   drive. Since storage units inevitably begin to deteriorate, the   
   Internet Archive needed to migrate the contents of these disks from one   
   storage unit to another, in order to verify the authenticity of the   
   migrated version.   
      
      Without the recently granted exemption, this emulation triggered DMCA   
   liability, since the emulation of disk drives to circumvent original-only   
   access control measures constituted a circumvention of "technological   
   protection measures," as prohibited by §1201(a)(1)(). This emulation is   
   now exempted from the scope of DMCA liability. Thus, under this new   
   exemption, companies may emulate technological protection measures, such   
   as floppy disk drives, in order to access the contents of computer   
   programs and video games, assuming that the use is for archival purposes,   
   and that the computer programs and video games are distributed in obsolete   
   formats and require the original media or hardware as a condition of   
   access.   
      
      CONCLUSION   
      
      The six exemptions granted in the third triennial rulemaking reflect a   
      
   [continued in next message]   
      
   --- SoupGate-Win32 v1.05   
    * Origin: you cannot sedate... all the things you hate (1:229/2)