Fetish-Numbers - Marie de Sade, Dr. Olaf Hoffmann (the beach read TXT) 📗

the meaning of this act are technologies, devices and components which, in normal operation, are intended to prevent or restrict protected works or other acts concerning objects protected under this act which are not authorised by the rightholder. Technological methods are effective to the extent that they keep the use of a protected work or other subject matter protected under this act under control by the rightholder by means of access control, a protective mechanism such as encryption, distortion or other transformation or a mechanism for controlling reproduction, which ensure the achievement of the protection objective.

Reading the work is necessarily the authorised, intended use of the work, therefore neither the removal of a protective foil for printed books nor the removal of a sales encryption for digital works is a circumvention of protection under the law. Furthermore, it is not necessary to purchase additional tools from the distributor to remove such sales packaging, such as a knife to remove the protective film on printed books or a suitable program to remove the sales encryption on a digital file to make it a readable work. The choice of the tools to remove sales packaging is left to the buyer.
Encryption and decryption are therefore part of the process of trade between buyer and seller, not at all part of the normal operation, the reading of the work.
In terms of cryptology, the work is the message. Encryption and decryption are only relevant for the short period of time during which a message is transmitted between seller as sender and buyer as recipient.

It is also decisive with regard to effectiveness that the access is kept under control by the rights holder. By no means, therefore, by a trader. All rights are always held by the authors, but they can be represented by publishers, for example. The law therefore deals with encryptions carried out by authors or their representatives on their behalf, not with encryptions in the context of a sales process, which are automatically organised by dealers quasi as packaging.
Encryption as packaging, as well as key management, can in turn be interpreted as independent instances of protection, with which it can be checked whether merchants are charging publishers or authors correctly.

Furthermore, the wording explicitly requires that rightholders must explicitly agree to decryption. In this sense, the public is hereby explicitly allowed to decrypt a possible encryption of the Fetish-Numbers again in order to access possible hidden contents, messages.

With regard to the usual procedures of corporations such as Adobe or Amazon, however, the legal text remains vague to dubious. Adobe or Amazon are not rights holders and have nothing to do with the process mentioned in the law. Adobe provides programs or a service for key management. Amazon or other booksellers are also no rights holders of works.

What is the effectiveness of the concrete procedures of Adobe or Amazon, since methods have recently been known for these procedures to make encrypted works accessible?
Are these procedures still an effective access control, even if they would really be operated by right holders?
Is there a bypass, not rather an accessibility, decoding as with UTF-8, to make the content accessible only readable with a suitable powerful program of one's own choice?
The reason for buying common files is to read the work, not to buy an encrypted, unreadable file. A decryption is therefore necessary in order to make the file into a work, to make it suitable for the use intended by the author and the audience: That it will be read by the public.
So this is by no means a bypass, but rather a necessity in the case of digital files to generate a visual or acoustic output from a bit pattern sequence, which is suitable for easy reception by the audience.

A circumvention can only be said to occur if a coding made by the authors or rights representatives is changed, after which such a changed file is published again. Therefore, the all-clear for private, personal use is certainly given.
In general, it is only allowed to publish a work with the permission of the authors, so this also applies if the encoding of a work is changed, after which the changed file is published again. In this sense, recoding does not grant any further rights to a new file created in this way, no new work is created, regardless of whether it is dependent on or independent of the original work.
It is questionable in this context, however, whether it is not precisely this encryption by dealers that violates copyright law, unless they have explicitly obtained permission from the authors. With the methods used, a recoding is carried out, this means the work is changed into a file which must be decoded differently. However, it is doubtful whether additional encryption of a file is a circumvention of an effective protection mechanism. Encoding is not necessarily a protection mechanism, especially if the decoding method is freely available. An encoding according to UTF-8 including compression in an archive format – ZIP in case of EPUB – is not already an effective protection mechanism, although the archive format must be opened, the compression must be undone, decoded according to UTF-8 in order to make the digital work accessible to a reception.

More interesting, however, is the recoding into a format of its own carried out by Amazon. Instead of using the standard format EPUB, it encodes to a proprietary format, sometimes even changing the content. In this case, several copyright infringements by Amazon may be present, unless there is explicit permission to recode or modify content, which is not the case in practice when works come to Amazon via distributors, for example.
Even here, however, it should not be a matter of circumventing effective protection, but rather of an unauthorised falsification of the work itself. In any case, the new encoding generated in this way is not initiated by the rightholders and therefore certainly does not constitute effective protection of a work within the meaning of the law.

Conclusion: Encryption by dealers is not to be seen as an effective protection mechanism of works, but rather as packaging to handle a sales process. Such packaging must be removed by buyers as necessary to ensure that the purchased goods are used properly.
For their part, traders are by no means circumventing an effective protection mechanism within the meaning of the law, nor are they establishing one because they are not rights holders. Manipulations and recoding of works by dealers can, however, themselves constitute a copyright infringement.
An effective protection mechanism can be in place in case authors as rightholders actually carry out encryption themselves. It depends on the programs used whether the encrypted file thus generated is still a work within the meaning of copyright law, especially whether the file thus generated is a personal intellectual creation. This is certainly the case if the encryption method used for this purpose and the program or script are an intellectual creation of the copyright holder, this means there is no automatic mechanism without reference to the work. If the encrypted file is a work in this sense, paragraph 95a of the copyright act comes into effect. In this case it is explicitly necessary to grant the interested public the right to decrypt the file, as informally done above for this work.

When could a circumvention of an effective protection really be present?
In practice, authors or publishers appoint distributors to distribute or sell digital works. Exactly one copy is given to a customer per sales process. The sales process is then completed when the customer has made the work available to them. In turn, the dealer, in the case of a book sale, transmits the respective share of the sales price per copy to the publisher or authors, but at least statistical data on the number of copies distributed, provided the book is offered free of charge.
If the digital file is transferred from the dealer to the customer during the sales process, an attacker could now pick up a copy of the work during this transfer, thus making it accessible without the intended sales process taking place and without dealers, publishers or authors receiving any revenue for this additional copy or this copy being statistically recorded.
From the point of view of authors and publishers, the interposition of the merchant with its sales platform is to be interpreted as effective protection against unauthorised use, and the diversion of a copy during transmission is thus to be interpreted as circumvention of this protection. Additional encryption by the merchant is irrelevant. Such an intervention is therefore clearly to be classified as illegal under copyright law.

More tricky is the transfer of digital works after a purchase by authorised customers. In this case, the passing on of copies is most likely a circumvention of the effective protection of intended publication channels via dealers or similar platforms.
If, on the other hand, the work is passed on in such a way that no additional copy is made, this means the copy itself is completely deleted during the process of passing on, the number of paid or statically recorded copies does not change, so it should not be a matter of circumventing effective protection, but simply of giving away an acquired good.
It must be ensured, however, that the first owner cannot obtain unauthorised further copies of the work from the dealer, and any correlation in this respect must therefore be either transferred or deleted at this point in the context of resale.

A further case of circumvention of effective protection may be if attackers gain unauthorised access to digital book storage at dealers, libraries or customers, copy books and otherwise circulate them.
Similarly, a circumvention can also occur if a trader distributes copies himself without following the agreed procedure and without providing the publisher or authors with the agreed share or statistical data on any distribution.
This situation can also fall under the category of fraud, whereby in the case of free books, no damage that can be expressed in monetary terms can be named, although it is possible that the effective protection has been circumvented.

What is puzzling about paragraph 95a is its existence anyway, because without this paragraph, copyright law should actually provide effective protection for works. If legislators doubt the effectiveness of laws that address additional technical or administrative methods, where other laws are already effective against fraud, damage to property or for data protection, data security, privacy, etc, they will have to consider them.
Implies need and special mention of technical protection methods, especially a failure of legislation and prosecution‽
The conflict between these technical methods and the prohibition of discrimination is problematic, because such encryptions represent artificially created barriers to accessibility without any reference to content in books beyond the topics of cryptology or abstract art. Such barriers can prevent minorities from accessing relevant information – because decryption requires, for example, special programs that are not available for their operating system or presentation programs.
Therefore, it would be more appropriate to explicitly prohibit these insufficient, discriminatory techniques by law in order to protect minorities from discrimination, although in this case it does not even have to be a minority if purchasers of digital books are not generally considered a minority.

As is generally the case with legal issues, the same applies here: Previous paragraphs are only a personal interpretation of the legal text concretely related to EPUBs and common practice, do not represent any legal advice for concrete individual cases, but can possibly serve as an argumentation aid in case of dispute.

Abstract Art

In addition to cat videos or 'selfies', many abstract works of art can also be complex and extensive enough to encrypt and conceal information. This is