Hi all.
Clearly in criminal cases, LE usually have warrants enabling them to seize and image storage devices.
In addition, here in the UK, the Copyright, Design and Patents Act 1988 permits bit stream copying of a disk if it is for "judicial or parliamentary purposes."
Of course, neither of these cover private investigators or civil investigations, given the low likelihood of them ever being tried in a Court of Law.
Has anyone got any opinions on or had experience of defending themselves against a claim of copyright infringment by, say, a software manufacturer whose product has been copied as a result of a disk imaging procedure in a non-judicial case?
I can't imagine corporations like Microsoft or Sun having any issues but could the same be said for companies that produce software which is targeted at users wishing to subvert a forensic examination - i'm not sure they would be so accomodating…..??!?
Anyhow, your thoughts will be very interesting as always.
Thanks,
Dan.
I'm looking forward to the responses from the non-US readers to compare notes. In the US I suspect there'd almost always be an exception under the fair use doctrine.
One exception would be images created for books or other commercial distribution. That would not be fair use. For my students, I always strip the executables, DLLs, and such from the system to avoid any copyright issues.
Thanks for your comments ddow.
In the UK, our equivalent of your 'fair use' is 'fair dealing'. My interpretation of this is that bit-stream copies for civil investigative purposes would not be permitted within our version - it states that copying of "literary works" which includes computer software is only permitted for private study and non-commercial research - i.e. that copyright remains infringed by a bit-stream image of a disk for private investigative purposes.
I'd be interested in your thoughts relating to 'fair use' and in what way it enables an investigator to circumvent copyright issues.
Likewise, I am aware of a US legal case against 321 Studios, where the order was that they were to cease distribution of their DVD copying software (DVD X Copy) because it indirectly enabled users to breach copyright (http//
Please keep your thoughts coming.
Thanks,
Dan.
Good arguements Dan.
Well, until there are definitive court rulings, all I can do is guess. If I where taken to court for having made a forensic image, I'd have to argue that it was fair use for private study and should be allowed. Until there is sufficient reason to believe otherwise, I think that's a reasonable position.
I think we all agree that sometimes laws and court rulings are left standing because of politics and money to push the issue.
As to the question of coping a DVD, vs. a forensic image I think it's an issue of implied intent. I could use a copy machine to duplicate a book. But I can buy copy machines because people just don't usually copy books. Forensic images are not typically used to make illegal copies of software. The courts were convinced that wasn't the case with DVD X Copy.
What it would have taken to show fair use under a copy of a DVD, I can't predict. I suppose the court didn't have little children with their grubby hands handling DVDs. )