[free-sklyarov] Anybody here own a town? 1201(e)

Karsten M. Self kmself at ix.netcom.com
Fri Aug 31 23:10:23 PDT 2001

on Thu, Aug 30, 2001 at 10:04:03PM -0700, bahrainperson1 at cyber-rights.net (bahrainperson1 at cyber-rights.net) wrote:
> >On Thu, 30 Aug 2001, Jeme A Brelin wrote:
> >
> >> This is brilliant.
> >>
> >> And it doesn't even have to be a small town.  We just need a government
> >> agency to sponsor research into information security.
> >
> >       Wait a minute,
> >
> >       someone is doing university research under a DoD grant?
> >
> >       Holy crap, it couldn't be that simple, could it?
> >
> >                                                        -Scott
> <rant>
> No it is not that simple. What  you are talking about is not a protection 
> but a legal technicality. 
> Here is the scenario. You release some software, paper, speech, or
> just tell you neighbor that you can break some eBook format. The
> company who makes said software hears about it, calls the FBI, has you
> arrested, you are placed in Jail, maybe can make bail if it is even
> granted and you await your court date.  Now assuming that you have the
> resources you go through a 6-36 month process of hearings, trials,
> appeals, motions and other legal wranglings you maybe, maybe, get
> free. That is if your lawyer manages to convince a jury and/or judge
> that you fit the very narrow loophole.

If the RIAA, AAP, et al, want to challange the 1201(e) exemption in this
case, then it calls into question what can or cannot be used as
legitimate law enforcement exemption of the DMCA.  There's already a
strong borderline situation with Echelon, Carnivore, and similar spook
snoop tools.  France, among other countries, has accused the US of
engaging in industrial espionage via communications intercepts by
national intelligence operations.

Under the DMCA, such intercepts are probably illegal, and almost
certainly fall outside the scope of 1201(e) exemptions *if they are used
for industrial espionage*.  

The fun part is that there are several interests outside the US who have
little concern for US copyright law, and are less than pleased with
commercial use of intelligence activities (not to mention intelligence
activities themselves).  A nice nasty case in front of the WTO, or
against the US Government itself under US law in US courts, could get

> So you are free, big deal. You are financially devasted, probably
> unemployed, 

Square one at the moment ;-)


> Listen, this law does one thing, it strips you of your rights, all for
> the greed of a few. Rights a lot of people fought long and hard to get
> for you. 
> >From where I stand now it looks like the only thing that is going to
> get Dimitri out of jail and prevent this travesty from happening again
> is for that law to be torn up, scredded, de-inked, and burned to ash.
> Along the way you might want to do something about that dubious
> "contributory infringement" insanity, well First things first. 
> Those of us with IT backgrounds have to stop thinking like
> programmers, there is no work around, no technical solution. L. Lessig
> is right, the only way we are gonna beat the lawyers that he and
> Stanford are pumping out every year is to start playing the game
> ourselves.

I disagree strongly with this sentiment.

I'm drawing strongly from the GNU GPL.  RMS saw copyrighting of software
as a bad thing, but realized there was no way he was going to
singlehandedly overturn the law.  He engaged in a bit of guerilla guru:
apply copyright to a work, then apply a set of conditions to it such
that the exclusive rights of the copyright holder are freely granted, so
long as a set of "play nice" rules are adhered to.

I've read Lessig's essay posted here today, I've read a number of his
other essays, as well as _Code and Other Laws of Cyberspace_.  He's a
truly great legal mind, who absolutely understands both the significance
and vulnerabilities of the free software, and public domain copyright,
arena.  I'm not so certain that his assessment of the problem is
correct, or that the EFF's strategy of direct confrontation is the way
to fly.

In _Code_, Lessig identifies four sources of authority:  Law, Market,
Architecture (code), and Norms.

Our real opponent isn't really the law, it's the market.  Absent a
market backing this law, we could change the statute.  But the market
also works for us:  there's a strong demand for content absent the
artificial constraints imposed by a media monopoly, witness Napster's
success, and the emergent of successors far more immune from centralized

We have working for us Architecture (code), and norms.  Big Business
imposing million dollar fines, and quarter century prison sentences, on
foreign conference attendees doesn't play well.  We've scared Adobe
silent on this issue (we now need to scare them to our side).
Crackdowns on teens swapping music, grandmothers exchanging needlepoint
patterns, jazz musicians, and other small, publicly appealing, target
(see "Is Content Protection on the Web Achievable?", previously
mentioned here by Seth Shoen:

> Lets take some pages out of the books of some of the more powerful
> lobbies like the NRA. They have managed to make amazing concessions
> over the years to gun control despite the fact they endorse products
> that by in large have very few uses but to kill people.  Obviously
> some of their methods are pretty effective.

Fueled by huge revenues on the part of the gun industry, gun clubs,
hunting clubs, and a membership that's amenable and responsive to
organization.  Hardly the herd of cats we've got here.

I think we'd be far better to *find* organized groups with large
constituencies that we can bring on board.  There are several that I've
mentioned to EFF folk, some that would be absolutely golden.

Karsten M. Self <kmself at ix.netcom.com>          http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?             There is no K5 cabal
  http://gestalt-system.sourceforge.net/               http://www.kuro5hin.org
   Free Dmitry! Boycott Adobe! Repeal the DMCA!    http://www.freesklyarov.org
Geek for Hire                        http://kmself.home.netcom.com/resume.html
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