[free-sklyarov] Generic reply to the "break into your house" comments

Neon Samurai alex at 2600.COM
Tue Jul 24 16:21:22 PDT 2001


On 24 Jul 2001, Klepht wrote:

	What the DMCA does not take into consideration is intent.  In
order for one to be guilty of a crime, one needs to have committed the
actus reus (physical act) as well as have had the mens rea (mental element
or intent).  It is understandable that copyright holders do not want their
copyrights infringed upon; however, creating legislation to the effect
that circumvention of any kind is illegal is absurd -- and this is what we
have with Dmitry's case.  

	Surely, Dmitry did not have the intent of facillitating piracy,
and he should therefore not be held to any criminal charges; however, it
seems like prosecution vis-a-vis the DMCA has no consideration of the
accused's intent, and instead treats the act as a strict liability
offense, like a speeding ticket where guilt has nothing to do with whether
you intended to speed.

Best,

Alex
http://www.VerizonEatsPoop.com


> Date: 24 Jul 2001 16:03:31 -0700
> From: Klepht <klepht at eleutheria.org>
> To: free-sklyarov at zork.net
> Subject: Re: [free-sklyarov] Generic reply to the "break into your house"
>     comments
> 
> >>>>> "m" == mickey  <mickeym at mindspring.com> writes:
> 
>     m> Yes, as would anyone. Yet, your example isn't complete. It's
>     m> not what is at issue. Consider the case where you have left
>     m> your keys on the coffee table. Is it illegal for you to break
>     m> in to your own house? That's what people mean by "fair use."
> 
> Here's my preferred analogy: in the United States, we have these tags
> that are put on mattresses. They say, very clearly, "Removing this tag
> will result in prosecution to the full extent of the law." (The
> admonition is actually for mattress salesmen because the tags also
> contain some kind of consumer info, and it would be illegal for them
> to remove the tag and sell a 8" polyester mattress as a 15"
> featherbed. But the admonition is frequently misinterpreted to apply
> to the owner him/herself.)
> 
> These tags are considered laughably strange to Americans, and are the
> subject of many comedy routines, to the point of being cliched. Why?
> Because it's intuitive and instantly understandable to people that
> once they buy a mattress, they should be able to do whatever they want
> with it, as long as they don't hurt anyone else. This should include
> tearing off a little paper tag.
> 
> I think that's a better analogy of fair use.
> 
> Dmitry made software that helped you remove the mattress tag. It
> doesn't help you steal mattresses out of a warehouse, or take the
> mattress out of your neighbor's bedroom, or make your mattress into a
> catapult weapon. It just helps you deal with your own damn mattress
> how you see fit.
> 
> Is what he did illegal? We're not quite sure. But we _do_ know that if
> it _is_ illegal, the law (DMCA) is wrong. Yes, it's true: laws can be
> wrong! So we're working to make sure he gets out of jail, and we're
> working to get the law changed so people can't be arrested for doing
> what Dmitry did in the future.
> 
> ~Klepht
> 
> -- 
> klepht at eleutheria.org
> http://www.eleutheria.org/
> 
> 
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