[free-sklyarov] Security warning draws DMCA threat

[Seth Finkelstein]

On Wed, Aug 07, 2002 at 11:21:31PM -0400, Matthew T. Russotto wrote:
> I understand your point -- that there are real DMCA abuses and there are 
> those that are just invocations of the name "DMCA" to scare.  But the 
> problem is that the DMCA is so broadly written that most invocations of 
> the name are likely to have a plausible argument behind them.

	But this is true of many other laws too, such as various
computer fraud and theft laws. In fact, even though the DMCA part of
the HP letter received all the publicity, there was also threat under
the Computer Fraud and Abuse Act,

	My point here is I fear a skeptic is going to reply in this case:

 "Ya, ya, you can threaten to sue anyone for anything. This DOES NOT
 mean there is a problem with the DMCA. It's just a problem with scare
 tactics. See, all it took was little publicity, and they backed-off.
 Stupid lawyers make stupid threats all the time, and it backfired on
 them and made the targets famous. It could happen with laws against
 theft, with fraud, with "conversion", and so on. The system is working
 just like it's supposed to do so. It doesn't show a DMCA problem at
 all, it shows a dumb HP lawyers problem, and you're all a bunch of
 paranoid hackers."

	And I worry that being vulnerable to such an easily made
counter-argument is going to take away precious mind-share from the
profound legal changes as demonstrated in the Sklyarov charges and
Elcomsoft trial.

	Again, maybe I'm wrong, because I'm looking at it from the
standpoint what I went through from *years* of trying to convince
people about legal risk. You don't have to tell me about chilling
effects. Remember, as I mentioned earlier, I've ended up dumping a lot 
of code-related anti-censorware work, since the DMCA censorware exemption
doesn't cover code, and I *don't* want that first-American-jailed
title :-( ).

	But when someone talks about the possibilities of prosecution
to people who are *not* already members of the choir, I haven't found
the reaction to be an immediate "My God! I never realized it was so bad!"
Rather, some common reactions *by skeptics* are (not exhaustively):
1) You're paranoid, it won't happen, it's all in your fevered imagination.
2) The ACLU or the EFF will defend you, they live for this sort of thing.
3) Break the rules, get what you deserve.

	So my concern is that, perhaps counter-intuitively, this threat
is not going to aid momentum for DMCA changes. And that too much focus
on it as a DMCA poster-child is in fact going to *weaken* arguments
against the DMCA, because it doesn't capture anything unique or new
about the DMCA (being broadly written and used in threats is
unfortunately *not* unique or new).

-- 
Seth Finkelstein  Consulting Programmer  sethf at sethf.com  http://sethf.com
Anticensorware Investigations - http://sethf.com/anticensorware/
Seth Finkelstein's Infothought list - http://sethf.com/infothought/
http://www.nytimes.com/2001/07/19/technology/circuits/19HACK.html