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Fair Use Bill Introduced To Change DMCA
An anonymous reader tips us to a Washington Post blogger's note that Representatives Boucher (D-VA) and Dolittle (R-CA) today introduced the FAIR USE Act to update the DMCA to "make it easier for digital media consumers to use the content they buy." Boucher's statement on the bill says, "The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use..." The Post failed to note the history. Boucher has been introducing this bill for years; here are attempts from 2002 and 2003. The chances may be better in this Congress. And reader Rolling maul writes in to note Ars's disappointment with the bill for leaving the DMCA's anti-circumvention provisions intact: "Yet again, the bill does not appear to deliver on what most observers want: clear protection for making personal use copies of encrypted materials. There is no allowance for consumers to make backups of DVDs, to strip encryption from music purchased online so that it can be played anywhere, or to generally do any of the things that the DMCA has made illegal."
Not that it will pass, but it would be pleasant not to be a criminal for burning the DVDs I own for viewing on my PSP...
DN
Now lawmakers and the "content" industries can claim they've already answer criticism and given ground, without actually changing much of anything.
The party shift in Congress won't change anything regarding the DCMA or copyright. Although fair use is certainly important to many Democrats, the concentration of IP rights in the hands of a few large companies at the expense of consumer rights has been a depressingly non-partisan issue.
#!
Why? Because it's "Democrat" controlled?
Who signed the DMCA bill into law, btw?
To the tune of YMCA (this stolen from www.userfriendly.org):
Net geeks,
There's no need to feel guilt
I said, Net geeks
For the software you built
I said, Net geeks,
Cause you're not in the wrong
There's no need to feel unhappy
Net geeks,
You can burn a CD.
I said, Net Geeks,
With your fave mp3's.
You can Play them
In your home or your car.
Many ways to take them real far!
It's fun to violate the D.M.C.A
It's fun to violate the D.M.C.A
You have everything you need to enjoy
Your music with your toys!
It's fun to violate the D.M.C.A
It's fun to violate the D.M.C.A
You can archive your tunes
You can share over cable
You can annoy the record labels!
The original generic sig.
Yet again, the bill does not appear to deliver on what most observers want: clear protection for making personal use copies of encrypted materials. There is no allowance for consumers to make backups of DVDs, to strip encryption from music purchased online so that it can be played anywhere, or to generally do any of the things that the DMCA has made illegal.
"We are the United States government -- we don't DO that sort of thing!"
Moderator hint: a comment is neither "Flamebait" nor "Troll" if it is true.
I've always wondered this. The current DMCA, AFAIK, makes breaking encryption a questionable prospect, at best (unless you have permission from the encryption designers). Why should this even be protected? Shouldn't we just encourage people to use stronger encryption that isn't as easily circumvented (in effect, why are we legislating that the use of "weak" encryption is okay)?
Personally, I think the encryption itself should be the deterrent to the circumvention of the encryption, not legislation.
If we can break the encryption, too bad; use something besides Fisher Price's "My First Encryption Algorithm" next time.
Would I still be breaking the law every time I play a legally purchased DVD on my Linux-based computer using decss-derived software?
It sounds like it. It sounds like the bill wouldn't even allow you to play a DRM-encumbered CD, unless the DRM was a Sony rootkit or other security problem. Lame.
Though on the other hand, being able to say "I am breaking the law every time I watch a DVD on my computer" is a simple and clear way to demonstrate how crazy copyright has become by outlawing what is so obviously ethical behavior. Since I will still be able to say that should this bill be passed, I have an equally simple way of expressing how copyright law is still screwed up, and how this bill completely failed to fix it.
Much better than having it partially fix the main problem so that it still isn't adequate, but becomes harder to explain. To put it another way: If you're going to suck, suck hard, so the slurping noise gives you away.
The enemies of Democracy are
The *IAA has too much money and political power for the government to pass a law allowing the circumvention of DRM. If DRM could legally be broken, there would quickly be commercial efforts to break it, and new methods wouldn't last a week. Clearly the media industry wouldn't like that, and for whatever reason, the government supports them more than the consumer.
You could be a "criminal" under the law, but not under moral principles. As the ancient Romans said, "non omne licitum honestum", which is translated as "not everything that's legal is honest".
Apart from the basic principles of "fair use", I think lawmakers should restrain from creating unenforceable laws, because they weaken the whole principle of legitimacy of the state. Violating laws that restrict copying of digital works is ridiculously easy. Even if some people try to equate copying music and films to robbing banks, if it were as easy to rob a bank as it is to copy a DVD, I would think the whole business model of banking should be reviewed before creating stricter laws against bank robbery.
There's a great quotation by Robert Heinlein about this. In his 1965 novel "The Moon is a Harsh Mistress" his character Bernardo de la Paz said: "But I will accept any rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; If I find them too obnoxious, I break them. I am free because I know that I alone am responsible for everything I do." In digital works, this assertion is absolutely true everywhere. If the public does not accept the laws protecting "intellectual property", those laws will be broken.
There's a word for introducing a bill that has no hope of being passed: grandstanding.
Instead, Boucher has produced a bill that actually has a decent chance of becoming law. That would be great since it gives a number of circumvention devices a legal way to exist and be distributed.
In two years maybe we'll have a Democratic president and then he'll be in a position to pass a more sweeping bill.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
Stop buying their crap. Find some other way to get entertainment.
Yes, however you wouldn't be breaking the law by using "clit" to break Microsoft .lit files and have your computer read them out loud. More importantly, someone could throw a reader into the same .zip file as "clit" and legally distribute it.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
"Section 1201 of Title 17 of the United States Code, in its entirety, is hereby repealed."
Schwab
Editor, A1-AAA AmeriCaptions
FAIR USE = "Freedom and Innovation Revitalizing U.S. Entrepreneurship"
Somebody please shoot me.
The DMCA reform bill Boucher has proposed in previous years is the The Digital Media Consumers' Rights Act (DMCRA). FAIR USE is a different bill, with a different target for reform: removing statutory damages, encoding some temporary DMCA exemptions into permanent statute, and ensuring that dual-use technologies (that have non-infringing uses as well as being used for infringement) are legal.
"Initiative Halting Arbitrary Terms Excessively Bringing Additional Confusion and Kludginess to Resolutions, Ousting Newspeak, and Yielding a Manageable System." (or I. H.A.T.E. B.A.C.K.R.O.N.Y.M.S.)
For security, the MD5 hash of this message and sig is 09f911029d74e35bd84156c5635688c0.
The DMCA didn't make it illegal to "back up" DVDs. That has always been true of audiovisual works; the reproduction right (17 USC 106) is exclusively reserved to the copyright holder, there's no AHRA-like carveout for movies / TV shows / other A/V works, and the "backup" provisions of 17 USC 117 apply only to computer software -- MPEG2-encoded A/V content is still A/V content, not computer software. The DMCA might have made it (theoretically) harder to reproduce DVDs, what with the anti-circumvention provisions, but no 'right' or legal ability to make a backup copy of an A/V work existed before the DMCA.
geek. lawyer.
Put "Fair Use" with "Clear Skies", "Healthy Forests Initiative" and "No Child Left Behind".
Intron: the portion of DNA which expresses nothing useful.
What really needs to happen is the utter destruction of the "Licensing" notion. This is where the customer will always be screwed because while you cry that "I own this... I should be able to do what I want with it", you dont REALLY own it. So you simply have no right to bitch about "Your Rights" when it wasnt yours to begin with.
"When life gives you lemons, don't make lemonade. Make life take the lemons back!" -- Cave Johnson
If anybody thinks the use congress will enact anything fair use, they are mistaken.
Even the most fair-use oriented part of congress are with a great margin on the MPAA and RIAA side of things.
Maybe the US needs a pirate party. http://www2.piratpartiet.se/international/english
With the current balance in congress, a few seats may give great influence.
don't cut it off www.mgmbill.org
I heard Norton is releasing a product to help with this. Something called The Clit Commander!
I read the script, and I think it would help my character's motivation if he was on fire. -Bender
You find yourself in the enlightened position of rooting for 100% effective enforcement of any laws on the books, while still being horrified at the stupidity of the 'we have way too much money, with little of it encouraging artists' lobby.
There are some open authors and musicians and other creative types who are actually worthy of your attention who refuse to attack their fans. They show a subtle attention to your best interest that the heavy handed conglomerates can only wish to imitate
Novel theory: Modern Man evolved from psychopath
I just wrote my Representative. I asked him to propose ammendments to this bill that would repeal section 1201(the anti-circumvention section), and modify the damages awarded from $250,000 to $5 with supporting logic that this new number is still 5X more than plaintiffs are offering as settlement.
My pimp is gonna sue Norton for trademark infringement!
The RIAA can keep suing a few thousand people a year, and it wont mean a thing. This year's round of the flu probably stopped more music-traders by flat-out killing them than the RIAA has by their lawsuits and propaganda.
All these laws mean is that the government is making itself more and more the enemy of the people, that the government is making itself more and more contemptible and despicable.
Incidentally, do you think the guy that posted the article is aware that it was a Democratic-Party government that proposed the DMCA, Democratic-Party congressmen who gleefully passed it, and a Democratic-Party president who signed it into law? The fact that the Republicans adored it too (as if they could dislike anything that strips the people of freedoms) doesn't mean that the Ass party is going to suddenly develop some newfound love of consumer-rights.
If the government makes itself redundant and stupid, the people will ignore its laws and do whatever they want. That's just the way it's always been. And I say this as someone who lives in a city with about a dozen Pot-smoking lounges that operate completely openly because even the cops have stopped giving a shit about laws that don't matter.
So the stupid provisions get tacked onto bills like a giant military spending bill. This guy should do the same. That way when people vote against it, we can say "See? These guys are helping terrorists" and get rid of the media company whores et al.
"Forget All Intellectual Rights Users Should Expect"?
j/k
- RG>
Hey pal, this isn't a pleasantforest, so don't waste my time with pleasantries!
In fact what's owned, bought, and protected (or not) here is expression, not content.
If you learn that the Earth is round from watching that digital video, you're free to share that fact with anyone you like. The copyright holders can't do a thing about it.
"The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use..."
That's the thing, copyright was created for the public's benefit and nobody else's! It's not like rights and freedom where there's a tradeoff between mine (I can do anything!) and what they impose on you (that means I can restrict you). With copyright, it's "hey, we want more material available to us, so we will make it worth your while by giving you a short monopoly". Well, it was.
Section 107 of Title 17 already does that: "the fair use of a copyrighted work...is not an infringement of copyright". Even the DMCA itself says that "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
Nothing short of that kind of attitude would win here, because otherwise, it's one gigantic fucking trap. 99% of laptops come with Windows, so even if you don't use it, you're still paying Microsoft -- and the entertainment world is similar.
So it comes down to: Either stop watching movies or TV altogether, or pirate them, or beg our government to smack them around and maybe even try to put some cracks in that oligopoly so we get some real competition.
Because the sad truth is, there is no competition. It's pretty much like trying to use a computer without supporting Microsoft, or owning a car without supporting oil companies. It can be done, but it's not easy, and it almost defeats the purpose, and they won't care about you and the other three guys who do this.
So, I hope they are running enough statistics to notice how I vote with my dollars: I don't buy DVDs, I rent them, rip them, watch them when I have the time, re-encode them, then delete them when I really need space. I don't buy music CDs, I borrow them or buy songs from non-RIAA sources. I don't watch TV, I download shows. And yes, I realize I'm giving them an excuse to crack down harder, because I'm a "pirate", but if they ever drag me into court, and can prove I'm a pirate, I will use the opportunity to point out that they are the cause of my piracy, and maybe even try to make a legal case around that -- but hopefully it'll let me deliver things like "It's as legal for me to pirate stuff as it is for me to watch a DVD on my computer" to a receptive jury.
Don't thank God, thank a doctor!
This is called "civil disobedience." I hope they find me, and put me on a big, expensive trial, then I ask for donations to pay for legal fees, get Slashdotted, and use the opportunity to fight the DMCA head-on. I'm not sure whether it's constitutional, but it kind of directly supports one oligopoly and another monopoly...
Don't thank God, thank a doctor!
Don't worry, you can always copy materials in a jurisdiction where its not illegal, like Sealand.
Are you doing so now?
The problem is, I bet you can't come up with a single instance of someone who was convicted or even charged with copyright infringement simply because they watched a DVD on their computer. You can't point out how crazy a law is by making up a hypothetical situation and then claiming that the law covers it. The DMCA says quite plainly that it does not affect fair use. If you want to claim otherwise, the burden is on you to prove that your interpretation is correct.
Comment removed based on user account deletion
Are you doing so now?
Assuming you don't mean right now, fucking of course I am. It's a ludicrous law, and I will not respect it. I bought the fucking DVD, I'm going to watch it and not feel guilty. I also occasionally travel in my motor vehicle above the posted speed limit, should I feel the safety considerations allow for it, and that's pretty well established in case law as illegal I would say. Just call me a rebel.
The problem is, I bet you can't come up with a single instance of someone who was convicted or even charged with copyright infringement simply because they watched a DVD on their computer. You can't point out how crazy a law is by making up a hypothetical situation and then claiming that the law covers it. The DMCA says quite plainly that it does not affect fair use. If you want to claim otherwise, the burden is on you to prove that your interpretation is correct.
The DMCA also says quite plainly that breaking an access control without permission is a crime regardless of whether or not you subsequently violate copyright. The DMCA makes criminal things that have nothing to do with copyright violation.
It can't be enforced, just like speed limits can't beyond a limited extent, but it's still a criminal act. I may speed, but I don't flaunt it in front of the cops. If you're going to tell me something is legal, when there are penalties for an incorrect interpretation of the law, then I'm sorry but it's you who hold the burden of proof.
The enemies of Democracy are
Be very wary of anything that Doolittle has a hand in.
I haven't RTFA'd yet, nor the bill, so i'm not commenting on wether it's bad, good, or otherwise.
But Doolittle is not to be trusted. Even more so than most politicians.
jz (Je-Tze)
We already have one. They're currently looking for graphic artists, lawyers, and writers/journalists that would like to help out, as well as researchers to contribute to the State Ballots wiki. Any help is greatly appreciated, I'm sure, even if it's just a small donation.
"We may face a scorched and lifeless earth, but they're accountable to their shareholders first."
> stopped more music-traders by flat-out killing them
Don't give these people ideas.
The Democrats are just as beholden to special interest groups (in this case, big media companies -- liberals in Hollywood donate to liberals in Washington) as the Republicans. At least the Republicans had a (dubious) principle upon which they based their decision. The Democrats are so afraid of getting cut off from their campaign donations that they won't do anything to upset the MPAA or RIAA.
Ah, you misunderstood my question. It wasn't whether or not you were watching DVDs on Linux, but whether you were breaking the law by doing so.
So there is a contradiction, and it comes down to which part overrides the other. Since the part about fair use explicitly references the rest of the DMCA, I'd say it's pretty obvious that part overrides the other parts: "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
Violating the DMCA is a copyright violation.
But speed limits can be enforced to some extent, and I can point out multiple examples of people who were charged with speeding (whether or not speeding is a criminal act actually varies from state to state, though).
If you want to keep the speeding analogy though, would you complain that it's illegal to rush your
I'm sorry, but until you show me some shred of evidence that the DMCA makes it illegal to watch DVDs using Linux, I'm not going to buy it. The DMCA clearly says that it does not override fair use. The judge in Felton v. RIAA clearly said that the DMCA did not override fair use (when Felton tried to make an argument very similar to yours). No one has ever been charged for watching a DVD on Linux.
There are not enough police, there are not enough soldiers, not enough courts, not enough prisons in the United States--or in any country in the world for that matter--to enforce a law that the public doesn't agree with. The art of governing is largely the art of convincing the governed that they are better off following the laws than not, especially if it is a law that touches almost everyone as these changes to copyright do. Thus far, these stalwarts have only succeeded in convincing the public only in a limited sense, and these heavy handed tactics that the RIAA and its ilk are using are, in a way, having the opposite effect.
The power of government really always is with the people, whether the form of government recognizes it or not.
Qu'on me donne six lignes écrites de la main du plus honnête homme, j'y trouverai de quoi le faire pendre.
How does this bill compare to what I believe are a reasonable set of rights like this?
Inasmuch as
- the marketplace for purchasing legislation is rather distorted with only two sellers (D and R = $) and is pratically opaque and
- as most voters are more concerned/distracted with the battle over Anna Nicole Smith's burial than DMCA, and
- as most voters probably don't even know what the DMCA is.
I expect money (which is needed to retain power in the periodic incumbent fest elections) will again streamroll this bill."Provided by the management for your protection."
If you think that the DMCA needs fixing, this is at least a start. EFF has an e-mail template that you can customize and send to your Representative directly from their site. It only takes a few minutes. On their main page, click on "Support the FAIR USE Act!" http://www.eff.org/
...///...
What's your crypto skills like? Programming skills? If they are BOTH up to the task, then you can break encryption. However, you cannot pass that knowledge on to others (trading in decrypt tools to bypass copy protection is illegal). So only those whose skills in the right areas are up to the task can enact Fair Use.
Doesn't make it much of a right, does it...
It wasn't whether or not you were watching DVDs on Linux, but whether you were breaking the law by doing so.
Sorry, I thought you were asking something that the post you replied to hadn't already stated plainly.
So there is a contradiction, and it comes down to which part overrides the other. Since the part about fair use explicitly references the rest of the DMCA, I'd say it's pretty obvious that part overrides the other parts: "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."
There's no contradiction at all. Fair use is a valid defense against copyright infringement, but it is not a valid defense against circumventing an access control because circumventing an access control is not copyright infringement. Describing how to circumvent an access control is not copyright infringement. It is a new, separate crime created by the DMCA. At no point does the actual creation of an unauthorized copy, public performance, or other copyright violations have to come into play for the actions defined by the DMCA to be illegal.
Violating the DMCA is a copyright violation.
No, it isn't, and I challenge you to show the language that says it is. Breaking an access control mechanism is a crime unto itself, separate from copyright. You're argument is akin to arguing that a defense against theft is a defense against B&E since B&E is theft. No, B&E is a separate crime, one that is often applied on top of theft but can also be charged separately if theft cannot be proven but B&E can. Similarly, you can violate a provision of the DMCA without comitting copyright infringement.
I have a real hard time believing that you really think Sec. 1201 which says "No person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof that-- `(A) is primarily designed or produced for the purpose of circumventing a technological protection measure that effectively controls access to a work protected under this title;" is talking about copyright infringement. How is manufacturing such a device an act of copyright infringement? It isn't. The only copyright work involved is one that the device could hypothetically be used to acces. It is, however, a crime to manufacture such a device. In Sony vs Filipak exactly this came up, and Filipak lost despite not actually violating copyright. Their devices violated the DMCA.
But speed limits can be enforced to some extent
Many things, including the DMCA, can be enforced to some extent, it's just obviously difficult to prove that someone at some point broke an access control. Many things, including speed limits or jay walking, are as a practical matter not strictly enforced because they're hard to prove without an officer of the law standing there watching you do it. Depending on where you go, e.g. Montana interstates, they may not be enforced to any significant extent. Enforcement is really irrelevent to the question of legality. An impossible to enforce law may be a bad law, but it is still law.
If you want to keep the speeding analogy though, would you complain that it's illegal to rush your
Not sure where you were going, but it sounds like you're going to ask me something irrelevent, like "such and such is illegal, do you mind?" Maybe, maybe not, either way it has nothing to do with the question of what the DMCA does or does not make illegal. If they made wearing orange socks illegal I would complain, they probably couldn't enforce it either, but it would still be illegal.
I'm sorry, but until you show me some shred of evidence that the DMCA makes it illegal to watch DVDs using Linux, I'm not going to buy it.
You know I seem to remember you arguing that you had to accept the GPL to run free software because the act of running the program created
The enemies of Democracy are
I don't believe "copyright violation" is defined in the law, so it is merely a colloquial term. I think a reasonable definition for "copyright violation" would be "a violation of copyright law", and you agree with me that the DMCA is part of copyright law, right?
Breaking an access control mechanism is a crime listed in Title 17 of the US Code, and the heading of Title 17 is "Copyrights". In fact, DMCA stands for Digital Millenium Copyright Act. So of course it's part of copyright law, not separate.
Well good, because I don't. I said it was a copyright violation, as in a violation of copyright law, not copyright infringement, which is defined in the code.
No, I certainly didn't say that. You never have to accept the GPL. Of course, if you do run free software in a way which creates copies not explicitly provided by the GPL, then the GPL is automatically revoked.
Only if you get your facts straight.
Filipak was trafficking in circumvention tools for commercial purposes, not merely using the tools for non-profit purposes. So I don't see how fair use defenses would apply. Also, a quick google search for "Sony filipak "fair use"" yields nothing, so I don't see that fair use was even raised in that case.
Sure, but that's irrelevent. I assumed you were using "violation" and "infringement" interchangeably. Now I see that your whole argument was baseless to begin with, since only by conflating DMCA violation with Copyright Infringement were you able to have a point.
Fantastic! Then I should be able to wrap this up neatly:
1) Violating the access control provisions of the DMCA is not Copyright Infringement -- mutually agreed.
2) Fair Use is a defense only against Copyright Infringement -- U.S. Code Title 17, Chapter 1, Section 107: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
3) Fair Use is not a defense against DMCA access control provision violations -- by (1) and (2)
Q.E.D.
You certainly did! Prepare to get pwned by the power of Google!
http://yro.slashdot.org/comments.pl?sid=61839&thr
"Which is exactly what the GPL does implicitly by stating that "by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so." I'd like to see you install something without modifying it."
Okay, you said "modify" not "copy", but essentially the same baseless argument.
I know it isn't really relevent since I've already proven you wrong. It was still funny seeing how you used very similar word games to make it look like you had a point there, too, only to have it evaporate.
It wasn't raised in the case because copyright infringement wasn't in the case! Fair use defenses would not apply because there is no fair use defense against things that aren't copyright infringement!
That's exactly the point. It was a DMCA case that was prosecuted without any instance of copyright infringement being alleged.
Did you know that fair use didn't come up once in Timothy McVeigh's trial? I guess the jury is still out on whether fair use is a valid defense against murder.
The enemies of Democracy are
OK, I can agree with that: Section 107 is not a defense against DMCA access control provision violations.
I was referring there to a claim which the GPL makes. I don't think that claim is correct. In fact, I think that claim is ridiculous, and it seems that you agree with me. The GPL claims that by modifying or distributing the Program you indicate your acceptance of the GPL. But that's nonsense - the same nonsense that other EULAs try to pull.
You accused me of "arguing that you had to accept the GPL to run free software because the act of running the program created a copy which would be illegal without the authorization provided by the GPL". I did no such thing. I argued that the GPL claims that you accept it when you run it. Big difference.
OK, I can agree with that: Section 107 is not a defense against DMCA access control provision violations.
Hooray, logic prevails! Welcome to 1998, glad to have you join us.
I did no such thing. I argued that the GPL claims that you accept it when you run it.
Oh, okay, that almost makes sense. Now, I'm quite certain the GPL is not intended to make that claim. For one, the authors of the GPL have always made that intent clear, and Eben Moglen has always been aware of and supportive of fair use rights. For two, the GPL contains specific language addressing this: "The act of running the Program is not restricted". I'll accept there is ambiguity in the language. You could argue that the act of running the program is not restricted, but the copy necessarily made when running the program is. I think that's a stretch, but it's plausible. Since a lot of contract interpretation is about intent, I think the Preamble would make it difficult for you to make that argument stick in court -- even before you got to the fact that fair use makes the argument moot.
The enemies of Democracy are
Sucks to be here, but thanks for the greeting. By the way, I still don't think you could win a case against someone based solely on their circumvention of a protection system in order to watch a DVD on Linux, but I now realize that it's not anywhere near as cut and dry as I made it out to be.
Agreed, though personally I think any license which claims that you automatically accept it when you do X is making a ridiculous claim.
Well, I wouldn't make that argument. In fact, I think the whole part about automatically accepting the license is completely unenforcible.
That actually raises an incredibly complex issue, though. Whose intent is supposed to be interpreted? Unless Eben Moglen is the author or the copyright holder (or maybe the licensee), I don't see how his intent matters. If we're dealing with a simple case of one person granting a second person a license under the GPL, then it is their intent that matters. But it's usually not that simple, and you're talking about multiple people granting a license under the GPL to everyone in the world. I have no idea what a court is going to do to determine intent in that kind of case.
Another complicated issue is that of the termination clause. According to the GPLv2, if you "copy, modify, sublicense, or distribute the Program except as expressly provided under this License" (or even attempt to do so), your license is automatically revoked. Now what if that copying, modification, or distribution didn't require a license? For instance, it could be fair use, or it could be first sale, or it could be the exercise of your rights under Section 117 (software installation). If you do this in a way not expressly provided under the GPL, do you forfeit your rights under the GPL? This is actually resolved in GPLv3, which requires notification before termination. But under GPLv2, it's really an open question.