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April 09, 2005

CNET's Charles Cooper rips on the DMCA

Link: Rethinking the DMCA | Perspectives | CNET News.com.

Ya gotta love this tag line:

"At its inception, many people called it a lousy law. CNET News.com's Charles Cooper says that proved to be too charitable an appraisal."

He's letting it rip, and here are a few of the highlights... don't hold back man, tell 'em what you really think.

Rethinking the DMCA

April 8, 2005, 4:00 AM PT

By Charles Cooper

Time and again since its 1998 passage, the Digital Millennium Copyright Act has proved to be one of the worst-ever pieces of technology legislation.

By now, nearly every sentient being in Silicon Valley must wonder why Congress couldn't have done a better job thinking through the implications of its handicraft before voting the DMCA into law. The act has been responsible for needless litigation and even transmogrified into something of a gag on free expression. More about that in a moment.

[...]

So it was that Congress bowed to the copyright industry's demands and created a marvelously one-sided document. By making it illegal to circumvent technology used by the copyright industries to protect digital content, legislators took care of a key constituency. But they also created an invitation to trouble.

With no clear boundaries and very little legal precedent, the predictable result has been a messy conflict between the public and the moneyed interests. And that's where we are now with the specter of the DMCA, like Marley's Ghost, rising up to chill the spirit of free inquiry when it comes to encryption and computer security research.

Here's my favorite example he gives:

2003: In an extreme example of the application of the DMCA, an Illinois-based manufacturer of garage-door openers claimed that a rival's replacement product violated copyright law. A federal court later dismissed the lawsuit.

Cooper's main point is that the threat of lawsuits is having worse than a chilling effect on free speech, and the suits are being used to keep QA folks from fairly evaluating the software.

Now where I come from, that is a form of protected speech under the First Amendment, called "fair comment and criticism." Imagine if such an odious rule were applied to movie and theater critics who gave away endings, for instance!

It seems to me that the whole point of the DMCA is to create a catch-all black box that anything created or produced can be stuck in and held exempt from nearly any kind of scrutiny at all.

This has far-reaching ramifications that Cooper doesn't look at here. I'm talking about proprietary voting software in the US, and its potential for manipulation.

It is beyond my comprehension that ANY kind of legal precedent is allowing Diebold and other e-voting providers to operate outside the public interest and the public trust by monitoring democratic processes inside a black box!

Hypothetically, I'd speculate that if property law (you know, the deeds and such that are open records at most counties in the US) were being created from scratch right now, I think these same folks would find a way to keep property ownership records, hell, all government procedures and processes, in that same black box. Hell, they'd subcontract it out to a private company in the name of government "efficiency," and that company would claim it's paperwork and software was so proprietary that all property records would be closed to the public, unless some "government" or whatever interest wanted to pay for it.

We know what company would be running such a venture in that black box, if that were the case. ChoicePoint.

April 9, 2005 at 11:37 PM in Cyberculture, Democracy, Intellectual Property, Interactivity, Media & Journalism, Politics, Privacy & Free Speech, Web/Tech | Permalink

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