[ANSOL-geral]Buraco na nova lei de direitos de autor europeias...

[André Esteves]

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Buraco na nova lei de direitos de autor europeias...

http://www.newscientist.com/news/news.jsp?id=ns99994384

In New Scientist; 18-11-2003"

Europe's new copyright laws, which make it an offence to sell devices that 
circumvent copy protection technology, may contain a legal loophole. The 
issue centres on a single word - "effective".

The loophole claim is being made by lawyer Rob Semaan, head of US-based 
company 321 Studios. The company sells software called XCopy that lets a 
computer make a perfect copy of a protected DVDs.

321 Studios is waging an ongoing legal battle in the US with the major movie 
studios, who say XCopy contravenes the Digital Millennium Copyright Act and 
assists piracy. 321 Studios say the software enables people to make 
legitimate back-up copies of their own DVDs.

Warner Home Video is also suing 321 Studios in the UK, explaining Semaan's 
interest in the European Copyright Directive. The ECD is now coming into 
force across Europe and is already part of British law.

The UK court case will be heard sometime in 2004 and Semaan thinks one clause 
gives him a good line of defence. "I like section 296", he told New 
Scientist. 

"It says it is only an offence to 'circumvent technological protection 
measures' if the measures are 'effective'," he explains. "But DVD protection 
isn't effective because it doesn't work.

 Unlocking keys 
 
XCopy makes perfect digital copies of DVDs by defeating CSS (Content 
Scrambling System) encryption, which is supposed to stop digital copying. It 
also defeats CGMS (Copy Generation Management System) which is supposed to 
stop analogue copying; and it defeats the proprietary Macrovision system, 
which toughens analogue protection.

"CSS is a total failure. Macrovision is a failure too. They don't work," says 
Semaan. "The unlocking keys are freely available on the internet. A school 
kid cracked them."

However, industry bodies in Europe have taken legal advice and reject Semaan's 
claim. "If their defence is that CSS is not an effective technological 
measure, it is bound to fail," says Lavinia Carey, chair of the UK-based 
Alliance Against Counterfeiting and Piracy. 

"A technological measure is 'effective' if the use of the work is controlled 
by the copyright owner through a process which achieves the intended 
protection," she says. "This does not mean that only un-hackable measures are 
protected. All it requires is that in normal operation the protection measure 
works - which it obviously does, or 321 would have no market."

Some sympathy 
 
But a legal expert contacted by New Scientist is not so sure. "The courts 
might well have some sympathy with 321's argument that protection is not 
effective if a schoolboy can defeat it," says Alistair Kelman, a barrister 
and computer expert with 25 years experience of copyright disputes. 

"Getting the courts to hold up the case against copying is not a done deal," 
he says. He notes the difference between home users making copies, and 
hardened criminal pirates: "There has to be a line somewhere." 

Any legal case against home users "walks straight into areas like the European 
Convention on Human Rights, Freedom of Speech and Freedom of Information", he 
believes."
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