[free-sklyarov] Arguments from consumer rights pov

[huaiyu_zhu at yahoo.com]

Following are some of my thoughts. I hope it can be communicated to
interested but uninformed people.  Comments and corrections are welcome.  
Use it if you like it.

		Who is infringing whose right?


1. Some considerations on intellectual property

Intellectual property is quite different from physical property.  Physical
properties have two kinds of values: utilization value and exchange value.
If you have a chair, and I take it, you can neither use it nor sell it.  So
you want to keep it to yourself for both reasons.  On the other hand,
intellectual property has at most the exchange value.  If you have a book
and I copy it, you can still use the book.  You can still sell the book to
others.  What you lose is a fraction of potential exchange value, that of
selling a copy to me.  Furthermore, if I distribute copies to others, that
may further take away more fractions of your potential sale value.  Of
course, if I had no intention whatsoever to buy it from you in the first
place, and I do not intend to distribute it to others, then you lose nothing
letting me copy it.

So intellectual property is similar to physical property only in this
limited sense.  Violation of intellectual property is not like theft in that
the owner loses something tangible.  Instead, the owner loses potential
exchange value.  It has no similarity whatsoever with piracy, which involves
violence, force, deprivation of personal freedom, and danger to human life.

[Note: there is no actual legal concept of intellectual property, but only
specific rights to copyright, patent and trademarks, and only for limited
time and application.  But that is another topic, (see earlier exposition of
Jason H Clouse), so I'll just use the word intellectual property in the
loose sense.]


2. A physical analogy of Sklyarov case

The above explanation is only necessary because it is often wrongly assumed
that this case involves violation of intellectual property.  It is in fact
quite different.  It is about means to circumvent a copy restriction device,
and about speeches on research in such restrictions.

Suppose you sell books, and you do not trust your customers to obey the law,
even though the law is clear that they can copy the books for their own use,
but cannot sell to others.  So to protect your property from your unlawful
customers, you decide to cover each page in a sheet of reflective material,
which allows users to read the book with a special lamp under a special
angle of illumination (but with great difficulty), while blocking any
attempt at copying it with an ordinary copy machine.  You sell your books
and the special reading lamp together as a "secure copyright protected
reading device".  In some countries such products are illegal to sell under
consumer protection laws, as they severely restrict the ability of consumers
to use it in many lawful ways.  Let's just assume that it happens to be
legal in this country.

Now what if some researchers discovered that the device is not really
secure, that there are many ways you can modify an ordinary lamp to read the
books?  What if the company that employs the researchers actually make such
lamps and sell them?  What if it happens that such a lamp can be used to
enable copying of your books?  Under DMCA, this lamp is called a "copyright
protection circumvention device", and selling it is illegal.


3. Does a tool steal?

Think about this for a moment.  Whether you own the copyright to the books
you sell is defined by copyright law.  It will not change with the ability
to actually make the copies.  If all your customers obey the law, all the
reflective materials and special lamps become irrelevant.  If they don't
obey the law, then the ordinary copy machine becomes the first copyright
infringement device.  The lamps are still irrelevant.  It is only when you
actively use the special device to restrict the ways your customers could
use their legally bought books, that the new lamp becomes a circumvention
device, under DMCA.  In fact, it becomes illegal even if it is only used to
make copies for fair use.  Or even if it is only used to facilitate reading
(because your lamp is not so comfortable to the eye, for example).  Or even
if it is used for other purposes entirely unrelated to your restriction
method.  No, it is still illegal, says the DMCA.  This Draconian law has a
clear inclination that given the ability to steal, people will steal, and
that any tool that may facilitate stealing must be automatically outlawed.


4. Who bears the legal responsibility?

Here is a further twist.  Suppose you actually sell these restricted reading
devices in a country in which they are illegal (because they infringe
consumer rights).  Suppose some company in that country sells the
circumvention device that makes your restricted reading device legal,
because they give back the consumer their rights of fair use.  And suppose
the leading researcher in that company, who happens to be a PhD student
doing research in this area, comes to this country to give a presentation in
a technical conference about the weakness in your restriction method.

Should you get him arrested?

Well, you might want to, for obvious economic reasons.  But is it moral?  Is
it just?


5. Conclusions

This debate boils down to the fact that there is currently no technology
that can completely prevent unauthorized copying while allow all authorized
copying.  The DMCA gives overly broad power to the seller, at the cost of
severely limiting the rights of the buyer.  It legalizes behaviors of the
seller as if all the buyers have the intention to steal.  It prohibits
behaviors of the buyers that would not otherwise be illegal, simply because
they could be suspected to steal.  Essentially it treats all users as
thieves on parole.  As such it is unfair.  Examples also show it stifles
innovation.  In the long run, it is likely to be detrimental to all parties
involved.



Huaiyu Zhu