Re: [tlug] GPL Quote

["Stephen J. Turnbull" <stephen@example.com>]

Kenneth Burling writes:

 > How many people have actually read the DMCA?
 > 
 > I am hoping that many have.

Almost none, I would guess.  It's hard reading, anyway, unless you're
pretty familiar with Title 17 (the chapter of the U.S. Code concerned
with copyright).  As a companion to those two, I would recommend
reading Larry Rosen's book on Open Source licensing (there's also an
O'Reilly book by Andrew St. Somebody, but Rosen's book is definitely
better for the theoretical stuff).  Following Groklaw might not be a
bad idea, either, but that blog presumes a reasonably high level of
understanding.

 > the DMCA MOSTLY just restates existing copyright law, and says "The
 > Government is actually watching now."  Most actual substantial changes
 > are in the form of explicitly stateing things in favor of the
 > consumer.

I would have to disagree, at least from the standpoint of open source
developers and advocates.  We have no big stake in the legislated
expansion of "fair use" to such uses as backup and media shifting, for
two reasons: we grant that for our software by definition, and these
were pretty firmly established in case law anyway.

On the other hand, the DMCA took an ineffective technology and made it
fearsomely strong.  I understand and agree with the principle behind
the "technical means" clause: behavior which subverts the fundamental
assumptions of society (here I include the economy and the market,
even give them pride of place since the copyright we're discussing is
a purely economic construct) is *criminal*.  I disagree strongly with
the presumption that retail copying is subversive behavior, though.
"Doing what comes naturally" (here, in the context of an extremely
artificial technology :-) is not subversive in a free society, and
attempts to make it criminal by fiat will generate really subversive
attitudes toward the law and social norms, as we've seen with
Prohibition, the drug laws, and now the DMCA.

Also, in the context of ever more "natural" (ie, cheap and easy)
copying, the severe restriction on fair use that the "technical means"
clause creates is perverse at best.

 > The fact that the media and software industry liked to use it as their
 > multi-purpouse club/bullying tool is a good indication of how much
 > they are depending on consumer ignorance in their activities.

Again, I have to disagree.  It *is* a club.  Ineffective copy
protection is very easy to produce and apply.  What used to be an
unenforceable franchise, since you had to catch and sue each violator
individually and then could only extract actual damage == single-copy
retail price, now becomes enforceable by terror (ie, punish one --
with jail time -- to warn one hundred).  This is very bad in a
democratic society.

On the other hand, very few consumers are truly adversely affected by
these restrictions, compared to what was possible only a few years
ago.  Indeed, the requirement that you have a token (the original
media or a dongle) just to play a game is annoying, but most consumers
are willing to put up with that, and the game itself could not have
been played, let alone created, with technology commonly in use at the
consumer level 5 years ago.  It is not clear to me that there would be
substantial benefit to consumers in greater preservation of their fair
use rights.

I think that if fair use really matters to consumers, even at the
level of 5 yen per game (and I bet it's more than that), technology
will develop to permit it, and vendors in markets where there are
consumers who care will implement it (or give up on copy protection).

We already know what the verdict is in the corporate world: it's a
pass-through cost.

 > That said, it does give copyright law more teeth, because they ARE
 > watching now.  :P

They've always been watching; it's just that absent the terror-
inducing criminalization of "circumvention," it was ruinously costly
to go after one-copy infringement.  Now they not only watch, but they
reach out and touch ... just like a stalker.

 > In MOST cases though, copyright law is substantialy the same now as
 > it was a hundred years ago.

Sure, but (a) as everybody here knows, technology has changed
dramatically (which actually is almost totally unimportant; the law of
100 years ago, updated to conform to Berne and to acknowledge the
reality that retail copying is ubiquitous and unstoppable would be
quite reasonable today in terms of enforceability and legitimacy to
the vast majority of the population), and (b) economic effects are
almost completely driven by the margin.

Three beneficial effects of modern technology, namely availability of
information to very low economic value users, aggregation of large
amounts of "obsolete" low-value information, and creation of social
capital in the form of open source software, are greatly reduced by
the changes made in the past 25 years.  But these are both marginal
effects in that, despite their vast growth over this period, they took
place at the margin of the economy, among consumers (either making a
few copies each of retail information or creating software for reasons
other than business profit).