[Foundation-l] Amicus Brief Filed in Golan v. Holder: Fighting for the Public Domain

Tom Morris tom at tommorris.org
Thu Jun 23 08:33:21 UTC 2011

On Thu, Jun 23, 2011 at 08:47, Alec Conroy <alecmconroy at gmail.com> wrote:
>>> Such works belong to our global knowledge.
>> You can't copyright knowledge. The usual term used there is culture.
> Clearly, you can copyright knowledge, for a time.  True, you can't
> copyright facts or scientific laws (yet)-- but some forms of knowledge
> absolutely get copyrighted, and they're lobbying for even greater
> powers over what people can read, write, and share.  In the past, for
> example, some entities have even claimed 'copyright' to try to limit
> distribution of knowledge of the specific 'special whole numbers--
> since those numbers were the ones they picked as "keys" when setting
> up their content encryption system.

The issue with that wasn't so much the copyright of the encryption key
as the fact that it was an anti-circumvention measure under the
Digital Millennium Copyright Act and other laws internationally that
implement Article 11 of the WIPO Copyright Treaty like European
Directive 2001/29/EC.

See http://en.wikipedia.org/wiki/Anti-circumvention

Article 11 implementations may be incompatible with sanity, reality
and/or traditionally recognised civil liberties. If is possible to
make circumvention technologies without infringing copyright: for
instance, if you had a phone that, say, had a small sensor to decide
whether or not is allowed to take photographs or videos in a concert
venue, and you decided to put a smal piece of black tape over said
sensor, you have circumvented a "technological measure [...] used by
authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect of
their works, which are not authorized by the authors concerned or
permitted by law". But in doing so, you haven't infringed on the
copyright of either the concert performer or the creator of the

Another similar case might be some of the CDs that you could disable
the DRM on by covering certain areas of the disk surface with a black
marker pen.

I Am Not A Lawyer, but I occasionally play one on Wikipedia.

Tom Morris

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