dark news about the archive

Posted on July 12, 2005 by Lessig

Bill Patry has a very depressing account about a “a horrific DMCA et al. suit filed against the Internet Archive.”

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10 Responses to dark news about the archive

  1. Seth Finkelstein says:
    July 12, 2005 at 8:22 am

    Disclaimer: I Am Not A Lawyer

    But I have studied the DMCA, err, *extensively*. IMHO …

    1) robots.txt is obviously NOT a “technological protection measure”, because one may obtain the desired information without even being aware robots.txt exists. So such a claim is ludicrous.

    2) Additionally, any such claim should be a slam-dunk rejection from 1201(c)(3):

    “Nothing in this section shall require that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part or component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).”

    But, as someone has said, “Fair use is the right to hire a lawyer”

    [Note I haven’t been able to see the actual charge, since the file is unavailable right now due to bandwidth limits]

  2. three blind mice says:
    July 12, 2005 at 9:06 am

    we are not lawyers either, but we have to agree with seth finkelstein on this one.

    it is a stretch that the robots metatag is anything like the encryption laid on a DVD which is the “technological protection measure” the DMCA was written to protect. the claim is not only absurd, it is mildy amusing.

    considering the way the courts rejected lexmark’s application of the DMCA – which was far less of a stretch than this – it would seem that “horrific” is a hyperbolic adjective that does not apply to this suit. (recall that lexmark used a proper technological protection measure, but for improper objectives.) in this case, it would seem a suit under the DMCA is perhaps misguided, probably foolish, but certainly not “horrific.” why can’t these things be discussed dispassionately? enough already with the armageddon adjectives, amigos. there is no reason to appeal to passion when reason will suffice. (i.e., your reliance on emotion to compensate for your general lack of reasonable argument shouldn’t become a habit.)

    the track record of the DMCA is that the courts are not giving it a generous interpretation and nor should they: even we vision impaired mice can see that the DMCA is a very poorly written law.

    that is not to say that the intention of the DMCA was not good. such a law is absolutely necessary to protect innovation, but the U.S. congress could have done – and must do – a much better job in crafting it. in a positive sense, suits like this will only help square the corners of future legislation.

  3. Rob Myers says:
    July 12, 2005 at 10:16 am

    enough already with the armageddon adjectives

    Squeaked the rodents who compare copyright infringement to drugs and terrorism.

    Before going on to defend violating the author’s right to control the distribution of their work just this once, in this one specific way.

    What’s that all about?

  4. three blind mice says:
    July 12, 2005 at 11:21 am

    Squeaked the rodents who compare copyright infringement to drugs and terrorism.

    touche rob meyers. we deserved that for our intemperate remarks in a pervious thread.

    (btw, gerbils squeak, mice just speak very softly.)

    What’s that all about?

    it’s about not further distorting a badly written law to enforce a noble purpose. we will never retreat from our high ground rob meyers, but the DMCA is bad prose. it should be re-drafted to provide the sharks with friggin laser beams protection that authors and artists must have in the digital age to defend themselves against the dark forces of “commons-ism.” (cue the star wars darth vader music – with permission of the copyright owner of course.)

  5. Seth Finkelstein says:
    July 12, 2005 at 12:42 pm

    Here’s an important comment from Patry’s blog post:

    [repost, not my words, FvL’s comment below]

    “Fred von Lohmann said…

    I’d like to suggest a different interpretation of their DMCA claim (while acknowledging that the complaint is not clear): that the robot.txt file operates as a TPM as used by the Internet Archive. The standing provisions of the DMCA have been interpreted broadly, so perhaps the plaintiff here is arguing that the Internet Archive has implemented a TPM that controls access to its archived materials. The robot.txt file is intended to block external access to these materials, and was bypassed by the defendants. (I’ll admit, this sounds like the Archive’s claim to bring, not the plaintiffs’, but the DMCA’s standing provision has been stretched before.)

    I think the claim still fails for the other reason you note. But I don’t think the complaint need necessarily be construed as arguing that robot.txt is a TPM generally.
    10:03 AM”

  6. poptones says:
    July 12, 2005 at 1:40 pm

    …the DMCA is bad prose. it should be re-drafted to provide the sharks with friggin laser beams protection that authors and artists must have in the digital age to defend themselves against the dark forces of “commons-ism.” (cue the star wars darth vader music – with permission of the copyright owner of course.)

    Ye truly are blind, but it appears to be more due to the blinders about your eyes than to any innate physiological impairment.

    As a contributor to that “commons” I defend those rights of copy nearly as vociferously as the good Mr. Valente – for it is those rights of copy, and the laws protecting them, that keeps the commons watered and fed and free of corporate smokestacks.

    Bring on the DRM!

  7. raoul says:
    July 12, 2005 at 4:08 pm

    “we will never retreat from our high ground “

    LOLRAONTGATUAOM!!!!!!!!

  9. Ansel Halliburton says:
    July 14, 2005 at 3:53 pm

    Does anyone have a PDF copy of the complaint? If so, please post it a link- the Geocities page appears dead.

  10. Seth Finkelstein says:
    July 14, 2005 at 10:12 pm

    There’s links to PDF’s in the comments of the account post at the top.

    Even better, ip-wars.net has a text copy:

    http://www.ip-wars.net/story/2005/7/12/185442/034

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