[free-sklyarov] AAP response quoted in a previous thread

alfee cube sisgeek at yahoo.com
Mon Aug 6 14:20:51 PDT 2001

adler is the individual who used the breaking into the
bookstore analogy which some harried representatives
found such perusuasive logic:

i can replay the exchange in my imagination:

rep: can you explain the dmca anti-circumvention

adler: well, we are trying to stop thieves from
breaking into the bookstore and stealing our books!

rep: how can anyone be against that, that's burglary,
by god, nobody likes a burglar, especially a book
burglar - you got my vote mr adler!

[note the real colloquy took place in the context of
fair use discussion/]
--- Paul Callahan <callahanpb at yahoo.com> wrote:
> Thanks for posting Adler's response to the ACM
> letter.
> It does make it clear (as should already be obvious)
> that DMCA proponents have a well-thought-out agenda.
> It's not that they are ignorant of technology. In
> fact,
> they know just how easy it is to crack a carelessly
> designed copy-protection system and this is why they
> favor criminalization of anti-circumvention 
> software.  
> I see the AAP argument as this: we need laws against
> the authorship of anti-circumvention tools
> regardless
> of their intended use. The cost to society from
> having them available is too great, since it will
> allow the easy theft and widespread duplication of
> any
> intellectual property in electronic form. Simply
> prosecuting infringement (already illegal before
> is ineffective.  DMCA is intended to augment 
> previous law in order to prevent the proliferation
> of tools that promote infringement.
> The legal argument really boils down to whether you
> believe that the rights of publishers should be
> extended beyond their de facto status before DMCA.
> Many here, myself included, believe that there is a 
> fundamental right to fair use that includes selling
> used books, copying books into a more convenient
> form
> for use by the purchaser, and citing text in
> reviews and so forth.  These have historically been
> enjoyed by the lawful purchasers of IP (readers) and
> have arguably promoted, not undermined the societal
> benefits (incentive to produce scholarly work) that
> are
> used to justify copyright law in the first place.
> New encryption technology, if *correctly*
> implemented,
> will allow publishers to infringe on these rights,
> historically enjoyed by readers.  Thus, DMCA extends
> the rights of publishers. 
> So with this in mind, it becomes clear that DMCA
> is a one-sided law.  In a different world, I could
> be writing a response from the "American Association
> of Readers":
> "The very development of
> copy-protection technology should be criminalized,
> since its proliferation will make it possible to
> infringe on the fair use rights of readers.  It is
> not
> merely enough to prosecute a publisher that sells
> an ebook without a feature allowing fair use, but
> even the development of cryptographic copy
> protection 
> is wrong, since it would so facilitate the ability
> of publishers to infringe on the reader's fair use
> rights that there would be no effective recourse. 
> Thus, the law should forbid not only the
> infringing use of copy-protection technology, 
> but the technology itself."
> If the suggestion above sounds any more laughable
> than
> Mr. Adler's, I can only suggest that this is because
> we as a society have become accustomed to hearing
> draconian laws proposed to protect corporate profits
> from the effects of new technology. But there are 
> also historical civil liberties threatened by
> technology. While these are sometimes discussed
> (privacy of financial databases), one rarely hears
> of new crimes being invented to protect them. E.g.,
> I have heard nothing about the FBI vigorously
> prosecuting credit
> card executives who fail to comply with laws
> demanding that they send privacy rights notification
> to
> customers.
> Personally, I think the DMCA anti-circumvention 
> provision is not only an unjust use of
> government force, but also a very unrealistic
> approach
> to preventing unauthorized copying. Sklyarov was 
> caught precisely because of Elcomsoft's insistence
> that its business was not violating any law
> combined with Sklyarov's openness in claiming 
> authorship.  It would be virtually impossible to
> enforce this law against a company that was making 
> any serious effort to evade prosecution.
> Somehow, the suggestion seems to
> be that with a sufficiently draconian penalty and
> relentless enforcement, it will be possible to deter
> any would-be authors of unauthorized decryption
> software even if the decryption systems themselves
> are not intrinsically secure.  I would concede that 
> this may be true, but "sufficiently" in this
> case is at an unprecedented cost to the civil
> liberties
> enjoyed in a democratic society.
> --Paul
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