[free-sklyarov] 'COMMENTARY: STEALING IS STEALING'

[alfee cube]

hi lars,

enjoyed reading your email to gene. it seems gene is
apparently wearing the blinders of a special interest
group.

legal scholars are also are very troubled by the
"vagueness" of the DMCA. what is obvious to gene is
not so obvious to those who seriously study the law in
general and DMCA in specific.

you, as a programmer, are forced into the untenable
position of not knowing when your behavior will be
deemed criminal and your freedom snatched from you!
may be this is acceptable to gene, but i suspect it is
not ok with you. it is certainly not acceptable to
those who study constitutional law and those who
cherish and value due process!

if gene was forced to consult a lawyer, not to mention
a collateral class exemption list, and any company who
may be impacted every time he wanted to write an
article i suspect his analysis would change
significantly? that gene is evidently willing to foist
this upon another speaks volumes.

all who seriously study any issue discover the more
they know the less they know. you have helped gene
along this discovery path.

--- Lars Gaarden <larsg at eurorights.org> wrote:
> Dear Gene,
> 
> In your article, you claim that we are overlooking a
> fundamental
> point with regard to the DMCA.
> 
> Unfortunately, it seems like you are missing a few
> points also.
> 
> 
> 1)
> Breaking security is an important part of security
> research.
> 
> I would ask you to take note of the following amicus
> brief
> submitted by noted security and crypto expert Bruce
> Schneier
> in the Felten vs RIAA case. In the declaration,
> Schneier explains
> why the act of trying to break security measures and
> protocols and
> the freedom to publish the results is an integral
> and important
> part of security research.
> 
> A quote from the brief:
> "9. Unlike many academic disciplines, security is
> inherently
> adversarial. Researchers who invent security systems
> are always
> competing with those who break security systems. Due
> to the nature
> of how security works, it is impossible to
> categorically state that
> a security system is secure. It may be secure
> against all known
> attacks, but there is no guarantee that a successful
> attack will not
> be invented tomorrow. Despite not being able to
> prove security, it
> is quite possible to definitively show insecurity,
> by explaining how
> to break a system, or by publicly demonstrating
> one's ability to do
> so. Since the presence of a negative result
> (break-in) shows that a
> security system is insecure, security can only be
> demonstrated by
> the lack of such results."
> 
> The entire declaration is available at:
>
http://www.eff.org/Legal/Cases/Felten_v_RIAA/20010813_schneier_decl.html
> 
> 
> 2)
> Creating a tool is not the same as stealing.
> 
> "Since when is it okay to steal something just
> because it wasn't
> very hard to do?"
> 
> Noone is claiming that stealing is right.
> 
> However, neither Felten nor Sklyarov are accused of
> stealing. They
> are accused of making tools, or describing flaws
> that enable
> someone to write tools, that might be used for
> copyright
> infringement.
> 
> The big inconsistency in article 1201 of the DMCA is
> that it
> makes dual-use tools illegal instead of making the
> act of
> copyright infringement illegal. Even tools like
> lockpicks,
> which are clearly designed for breaking locks and
> are
> often used for illegal acts, are not illegal up
> front.
> In most jurisdictions, a court has to find that the
> person
> in possession of a lockpick intended to use it for
> illegal
> purposes in order to convict him. Instead of
> applying the
> same standard to 'circumvention tools', the DMCA
> makes
> using or distributing these tools illegal - with no
> questions
> asked about intent. In other words, 1201 turns the
> legal
> system on its head by saying that people are guilty
> of
> copyright infringement until proven innocent.
> 
> 
> 3)
> Publishers are not free to rewrite copyright law.
> 
> You say:
> "And let's throw out the baloney about how "noble"
> hackers are simply
> trying to give legitimate customers the fair use
> rights they deserve.
> If customers decide that a company's copy protection
> schemes are
> too restrictive, they'll reject the product, and the
> seller will go
> back to the drawing board."
> 
> People don't "deserve" fair use rights. Fair use is
> an integral part
> of copyright law. These rights have been upheld by
> numerous court
> rulings, and are in addition codified in the current
> copyright law.
> Publishers are not free to keep the parts of
> copyright law they
> like and disregard the rest.
> 
> Your model will erase the fair use rights granted by
> law or
> upheld by legal precedent, and replace them with the
> largest amount
> of restrictions on fair use that the majority of
> your customers will
> accept.
> 
> 
> 4)
> Digital protection measures are not flexible.
> 
> "The flexibility of electronic copyright protection
> products should
> result in more equitable pricing that reflects a
> customer's specific
> use."
> 
> I am a software developer by trade, with my main
> focus on networks
> and security. Because of that, I have been watching
> the development
> of security and access control technologies with
> much interest.
> 
> You claim that copy protection measures are flexible
> enough to
> cater for all required forms of fair use. This
> implies to me that you
> have only a rudimentary understanding of the
> challenges and limitations
> related to these technologies and their interaction
> with copyright
> law.
> 
> To give an example:
> The legality of quoting parts of a copyrighted work
> is determined
> by many factors, including the size of the quote and
> the manner in
> which the quote is used. Legal scholars and courts
> have disagreed
> many times about the exact lines. Why do you think
> that a piece of
> software is able to determine the legality of this
> act, when the
> people that have an intimate knowledge of the law
> can't give an
> exact answer?
> 
> 
> 5)
> Equating opposition to the DMCA with disrespect for
> copyright law.
> 
> "Our entire industry is built on the idea that
> intellectual property
> has value. Some of that value is in the
> manufacturing process, some in
> design, some in editing and some in distribution. If
> there is no
> respect for those value steps, we might as well pack
> up and go home."
> 
> Sir, most of the people opposing the DMCA -
> including many US
> law professors - are critical to the law because it
> is too
> broad. It adds a new layer of protection, a layer
> that is much
> larger than the rights granted by copyright law
> itself.
> 
> We are not opposed to copyright law. We understand
> that authors
> and publishers must have a decent chance of making
> money from
> their work. We are not opposed to your right to make
> money,
> 
=== message truncated ===


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