2002 December 18

(entry last updated: 2002-12-19 09:22:44)

  • Check out LawMeme’s take on how the DVD content scramble system (CSS) should be an exempt technology (“access control device”) when it comes to DMCA protection.

  • Salon has an interesting article on the GNU Radio Project with a provocative thesis – bringing the Open Source ethic to radio might be a pre-emptive strike against legislative constraints on the modifiability of consumer hardware.

  • The Register also has an OS/2 obituary.

  • The ElcomSoft verdict will have many links today, I’m sure. Here’s LawMeme’s article and The Register piece. Donna points to a piece at the Volokh Conspiracy, as well as Lisa Rein’s complete coverage. She also points to two places in the Doc Searls weblog – (a) and (b)

    The New York Times piece takes the odd angle of suggesting that the inconsistencies in a global reach of US copyright law took a blow with the verdict, but I would disagree. The key quote in yesterday’s CNet/ZDNet report is

    Jury foreman Dennis Strader said the jurors agreed ElcomSoft’s product was illegal but acquitted the company because they believed the company didn’t mean to violate the law.

    This quote echoes the conclusions of Jessica Litman‘s Digital Copyright – the law of “intellectual property” has become so arcane and complex, as a consequence of a long cycle of negotiations among selected publishers, that it is no longer meaningful to the layperson. This is not to say the the layman objects to the basic notion of copyright; rather, the layman is unable to reconcile the arcane strictures of current copyright law with his commonsense notion of what constitutes moral behavior when it comes to the treatment of creative work.

    In the digital age, where the barriers to entry have fallen and everyone can be a publisher, the complexities of these IP laws are being viewed by the public in the same fashion that the sodomy laws are seen – arcane remnants of another era, whose relevance is long gone. The jury clung to the word “willful” in the statute to excuse their nullification of the strictures of the DMCA. It will be interesting to see if there will be any further DMCA cases tried before juries.

    Wired finds at least some who think not, and Declan McCullagh points out that the higher standard required for criminal prosecution made all the difference. A purely civil complaint by Adobe would probably have been successful.

  • Slashdot adds a new wrinkle to the article posted yesterday on the subject of the RIAA going after retailers of pirated CDs – apparently some of the stores targeted sell *used* CDs, making this effort a potential attack on the first sale doctrine.