I understand that, but here's the problem - stuffing the genie back in the bottle, or the toothpaste back in the tube, is impossible once its out.
And now, its out.
Witness the DVD "piracy" stuff. And that was real piracy. The sites that distributed the crack were shut down in the US, but do you think that really shut them down? No. You can still, right now, go on the net and download a piece of code that will rip a DVD, remove the CSS, and recode it to fit on a DVD-R. That code may be illegal to distribute HERE, but its not illegal to distribute THERE (meaning outside the US), and its still available.
And this was a business (the MPAA) that had literally billions to spend on trying to stop it. They failed. They're STILL failing. All they managed to actually stop were sales of a commercial product exploiting the hack.
This is an entirely different situation. Even under the DCMA, the test of actual intent and available use must be answered. A device or code is not illegal if it has legitimate uses which dwarf the potential illegitimate ones. I know of nobody who's interested in stealing DRM-licensed material using this technique.
I know of a lot of people, here and elsewhere, who are interested in using it for the perfectly legal purpose of upgrading their hardware or replacing a blown disk drive.
Second, I know of nobody who is talking about selling DMS replacements. One of the collateral means of attack by a company is based on unfair competitive actions (theft of trade secrets does not apply here, since to be liable for that you have to have been under an agreement to treat the material in confidence - none of us is.) That mode of attack presumes commercial intent. Again, I see nobody here talking about trying to sell replacement DMS cartridges. I do see people wanting to enhance their own hardware. No commerce, no means of attack there (ie: Sue me, but there are no damages. Go ahead and win, get a $0 judgement! Have a nice day and a huge lawyer bill sucker!)
Anyone can sue anyone in this nation. However, to get content removed and people stopped prior to a trial you need an injunction, and to get THAT you need to show likelihood of success at trial, that the balance of harms favors you (that is, the harm to the person who is doing whatever is less than the harm to you if what's happening continues) AND that a money judgement later doesn't "fix" whatever is being broken by the alleged action.
Those are the basic elements. They're not easy to prove; this is a VERY high bar, and with good reason.
In this case, I don't believe there is a case.
Certainly not based around the DCMA, since there is no argument to be made that the intent and desire is to steal licensed music (or audible content.) I don't own any content with DRM tags on it that can play on a Phatbox (DVDs, of which I own many, don't qualify, since the Phat is audio only.) Certainly not around some claimed license, since nobody was ever presented with one; all that showed up in MY box was the hardware and a sales receipt. We're not hacking their PC code (which could arguably have a "shink-wrap" license, and might even be enforceable); we're hacking the equipment, which is not sold subject to acceptance of any kind of terms at all.
Now what we MIGHT provoke is a change in the Phat's software to close that hole. However, the existence of the CURRENT code is a given, along with PAST loads, so all this really does is either foreclose us from future releases or force us to reverse-engineer it once again.
BTW Phat's official forum is offline.....anyone know why?
