Section 8 (a nice name, familiar to many miltary JAG lawyers) provides prison time for recording in a movie theater. Prison? Hardly. Fines, confiscation of equipment and media, but prison? Never.

Another troubling issue (brought up at corante.com), is the provision prohibiting skipping ahead through commercials or dull parts. (How they intend to enforce this is anybody’s guess.)

�I deplore this practice, but with this administration and USTR I�m afraid we are stuck with it.�

From what i have read regarding foreign policy on kerry�s site, John Kerry as well has a big platform on exporting �respect for intellectual property� with free trade agreements.

No partisanship here — lets recall that Chapter 12 of the Copyright Act started life thanks to Bruce Lehman and Bill Clinton’s Working Group on Intellectual Property Rights. See their infamous white paper, which also recommends exportation of these anti-circumvention measures via Berne and other IP treaties.

If a plaintiff in a copyright suit ran the risk of paying the defendent, say, twenty times the claimed damages, and double the defendent’s costs, if the suit were found by the trier of fact and law to be frivolous, vexatious, or without merit, there would be a drastic reduction in FVWM copyright lawsuits to begin with.

For example, would 3-2-1 studios been able to provide that there was substantial use in format shifting DVDs and backup copies of game software to avoid being buried by lawsuits?

Would something like Skylarov’s ebook software, which stripped the protections from Adobe Ebooks, allowing reading aloud be acceptable under this law, despite being written for profit and by a seeing individual?

Hypothetical tools which allow the playing of Walmart/Napster/Sony/Itunes purchased music on unlicensed mp3 players?

I think that as long as “circumvention tools” are outlawed, fair use will be technically impossible no matter what the law potentially allows. If a developer, particularly of the shareware bent, seeks to develop tools for format conversion — if they have to hire a lawyer in advance to have “substantial non-infringing uses” advice, it will strip much of their incentive to develop such a tool, as the lawyer fees alone will make the effort unprofitable.

And, there are other perils for a developer attempting to provide tools which enable fair use…

For example, lets say I buy a time-limitted song from a provider. This is a promotional tune, for a week only.
Now, I use software to convert it to MP3 (fair use – so I can play on my non-Ipod mp3 player). If I listen past the week, that’s infringement. The DEVELOPER is liable, since the software provides means of accessing content without recompense, and even despite some non-infringing uses, is still a “theft of services” device.

In the end, you only have the rights that code allows you. If people don’t write the code, or the code isn’t usable, those rights don’t exist no matter what the law potentially allows. If the law doesn’t make it possible for small developers to write (and profit from) niche tools to enable fair use, then it be effectively worthless.

(Note that I speak for myself and not the company that employs me).

Regarding your request to use my poem, you and everyone else are more than welcome to use or modify it for any purpose as you see fit. As far as I am concerned, there was no copyright of any kind on that poem but the federal government, in all its wisdom, has decided what is best for me and has automatically imposed a copyright on the work regardless of whether I wanted it or not.

Therein lies another problem with the current copyright regime. Any work that is created is automatically given a copyright even if the author’s intention was the free distribution and modification of said work. Before the current regime of copyright laws were implemented, any work that was created had to be actively copyrighted by the author in order to be recognized by the government as copyrighted. As a result, most of the creative works automatically were considered as part of the public domain and no one was poorer for it.

Today, in our litigious society, everyone has to seek permission for any kind of creative work (even if it was obvious that the author could not care less about the permissions) and it can lead to the monopolization and stagnation of creative content and the shrinking of the public domain.

For example, I did not seek any permission to use the Noeller poem. If I felt that I had to seek the permission, I would not have bothered to modify the Noeller poem in the first place and posted it here. It simply wasn’t worth the trouble. This is how creative content will become stagnant over time.

The demonstration of this particular facet of the copyright laws could be a powerful tool to expose the general public to the inherent absurdity of the current copyright regime and could help increase the pressure on the government to repeal some of the more draconian laws.

To regain some perspective I sometimes like to reread this short parable by Freenet creator Ian Clarke:

I was in the pub last night, and a guy asked me for a light for his cigarette. I suddenly realised that there was a demand here and money to be made, and so I agreed to light his cigarette for 10 pence, but I didn’t actually give him a light, I sold him a license to burn his cigarette. My fire-license restricted him from giving the light to anybody else, after all, that fire was my property. He was drunk, and dismissing me as a loony, but accepted my fire (and by implication the licence which governed its use) anyway. Of course in a matter of minutes I noticed a friend of his asking him for a light and to my outrage he gave his cigarette to his friend and pirated my fire! I was furious, I started to make my way over to that side of the bar but to my added horror his friend then started to light other people’s cigarettes left, right, and centre! Before long that whole side of the bar was enjoying MY fire without paying me anything. Enraged I went from person to person grabbing their cigarettes from their hands, throwing them to the ground, and stamping on them.

Strangely the door staff exhibited no respect for my property rights as they threw me out the door.

To Branko, I think that many yourger people are well aware of the harms caused to free speech, the ability to use digital media for fair use purposes and to technological innovation generally by the DMCA. As one write pointed out , we had a very successful public hearing on these harms and others will be held, potentially informing thousands more of the need for amendments. My hope is that those who are in the know will contact their member of Congress. A simple email will do.

Congressman Boucher convened an excellent panel of experts, and we may say that this is Valenti’s swan song (before he segues into a lucrative career as TV pundit.) None too soon, says I, as Valenti’s opinions no longer grant him a free ride, watch him sweat as he dodges, prevaricates and dissembles questions from Congress critics. A famous line is here: Rep. Otter says, “I don’t care what you say, Professor Lessig! I say copyright is propertry, and dirt is dirt! Copyright is dirt!”

Congressman Boucher, Gary Shapiro has done a wonderful job as advocate for the electronics industry. I have long felt that the industry giants in Silicon Valley were a day late and dollar short in lobbying efforts and monies spent in Congress. For the rest of us, the clean and squeaky act we have to bear is tiresome, representing consumers and non-profit public policy.

It is a canard that the Northern California bunch are of the libertarian bent. But I say that it is another example of a nascent industry acting as an “outlaw industry.” That is, until the day they wise up and get in the game. This means putting on a suit and tie and PAYING what it takes to walk the halls of power.

Tim Wu’s essay on Copyright Communication Policy has the best wrap-up of the entertainment industry history I’ve ever seen! Bearing in mind that industry giant MCA (known as the “Octopus,”) finally wised up when broken up by the Justice Department in 1962.

The rest of the story can hardly be news: they put their man Reagan in the White House. It no longer seemed as profitable to grub like mobsters for nickels when they could own the building.

And finally laying to rest the ghost of Sidney Korshak will mean the end of the gangster era when Valenti exits the scene.

This is a wake-up call for the electronic industry. Being smeared with the “pirate” label is nothing new in the entertainment history. Clean up your act, wise up and do what’s neccessary to compete in Washington.

It’s all fine and dandy to put up posters on telephone poles on campuses, but that’s kids’ stuff. Let’s get in the game and push back hard.

Please convene Part 2 of the DMCRA Hearings, Congressman Boucher. Keep the momentum and publicity efforts ongoing,

“The problem i see is that there is a severe generational gap in play here. Most people above the age of 26 are not very aware of the abuses of the DMCA because they dont really impact their daily lives”

I can fully attest to this! My 57 year-old father recently had heart surgery and during my visit with him he asked me if I could show him how to download music on the Internet. We went to several of the on-line vendors and I explained how DRM can limit the amount of times the content can be used, how it can be used, etc. He was stunned by the control the content industry exercises! He was totally disenhearted as he attained some level of understanding of the status quo.