There is a part of the constitution that says that the federal government can't do this.
Most of these laws (including the DMCA, if you read the legislative history carefully) are justified by an extremely expansive reading of the commerce clause. This is the root cause of all of these problems.
It used to be, until FDR pressured the Supreme Court during the height of the Great Depression with the "Court Packing" plan, that the right to "liberty" recognized by the 5th amendment actually acted to protect individuals from overreaching acts of Congress. In the late 30's the Supreme Court overturned these precedents and ended "substantive due process". The effect was that the level of scrutiny given to commerce clause based laws was sharply reduced. Congress has filled itself with the people most able to extort campaign contributions in return for regulatory favors.
The (somewhat) good news is that the pendelum has finally started to swing the other way. The Supreme Court has started to tell Congress that it cannot use the commerce clause to do whatever it wants. It started with US v Lopez where Rehnquist wrote a 5-4 decision striking down a Federal Gun-Free Schools law. They have followed with two other similar decisions, including striking down the Federal Violence Against Women Act, saying that the commerce clause could not be used to justify usurping police powers from the States. So far, though, they have only turned back criminal Federal statutes that States traditionally regulate.
Clarence Thomas wrote a concurring opinion in US v Lopez, where he stated that he believed the Supreme Court had, over the years, strayed badly from the original intent of the Commerce Clause.
A basic freedom? Really? This "basic freedom", by which I assume you mean "fair use" provisions was created by US Congress in the late 60s with the passage of the Copyright Act.
Yes, actually, fair use is a First Amendment freedom. You have the facts wrong about the 60's. Congress first "restated" the principle of fair use in 1976. They added to the Copyright Act, essentially unchanged, a "judge-made" doctrine enunciated in 1841, but with roots going back to the British Statute of Anne which predates the US Constitution.
Copyright has a special place in the Constitution in that it temporarily protects original "writings" Copyright is inherently a form of speech regulation, so any deviation from the Constitutional purpose should hit the sharp razor of the First Amendment. It is only because of fair use and a narrow focus of protection provided by Copyright to the exact expression rather than the underlying facts and ideas that saves the Copyright Act from the First Amendment Axe.
I sent the following letter to my representative. You can email your representative easily by going here ____________________
To the Honorable Lamar S. Smith:
I am a database consultant in your district. I work at the Air Force Recruiting Service Headquarters at Randolph Air Force Base. My work there brings me in contact with technology and information system security issues on a daily basis.
I recently read an article about the Council of Europe's Draft Cybercrime treaty that frankly scared me. The article is available at this URL:
http://www.msnbc.com/news/480734.asp#BODY
Let me be clear: this treaty would be a disaster that would threaten national security and the health of electronic commerce. The idea of the treaty is dead wrong. "Full disclosure" of computer security flaws is essential for system administrators to protect there own systems and it is also critical to eliminate denial on the part of software vendors and to track the effectiveness of responding to security concerns. It is also a First Amendment right to have open discussion on security flaws.
I believe that the U.S. delegation to this treaty is incompetent and should be recalled before serious damage is done. They obviously have little understanding of what it is that they are regulating.
Do you believe that the intellectual property law changes over the past few years have adequately protected the intellectual commons? Have we gone too far in allowing corporations to homestead in the public domain? Does this threaten to put the breaks on the public cooperation and innovation that produced the internet?
Comment specifically on:
The Digitial Millenium Copyright Act
The Sonny Bono Copyright Term Extension Act
Fair Use and "file sharing"
UCITA and Article 2B of the UCC
Business Process Patents
Software Patents where non-software prior art exists
Sorry California you do not have the authority. Title 17 of the US Code section 301(a):
301. Preemption with respect to other laws (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).
Right, but "acting in concert", according to the opinion, is equivalent to "aiding and abetting" the actual defendent. I read this as saying that mirroring by 3rd parties probably doesn't qualify unless there is some direct interaction with the named defendant.
The idea is that if the named party acts by way of an abetter that this is really the same as the party acting, so that the side was represented. If Courts don't properly construe the intimacy required, then there is danger, yes. But it will always be true that there is danger if Courts make mistakes. Appeals cover this and due process should prevent two distinct interests from being treated as one.
What shortage? We get tons of people that apply for our IT positions here... farmers, lawyers, teachers, child-care workers, nuclear waste disposal engineers, israeli air force pilots... Yes, these are -actual- applicants. What's sad is that these are some of the ones that make it through the first screening... yikes.
Actually it's pretty obvious to me that the fact that we never bring these people into the profession is precisely why there is a shortage. If you search monster.com for intro level jobs doing anything IT, you won't find any. "Junior level DBA wanted" or "C++ programmer with 0-2 years experience wanted" just isn't out there. The problem is that experience and talent are only weakly correlated and the clueless fools (managers, HR dolts, and recruiters) would rather have an idiot with 5 years experience than a genius who programs for fun in his spare time.
I'm willing to bet that within 6 months at least half of the folks in your list could be earning money for you. Sure the training will cost a little, but it's ok to pay entry level people less to offset this.
Hire the one that seems "smartest" with a good work ethic; offer them half of what you would someone more experienced; pay for them to go to a training class in everything you think they should know; make them agree to reimburse training costs if they leave within 2 years; Give them a 20% raise every six months for the first two years.
My guess is that if you advertised these things you'd have some extremely gifted applicants who want to change fields and would probably be highly competent MUCH faster than you think.
He may be planning to retire after the election (I've heard he's been holding out for a republican president)
Or, maybe he read judge Kaplan's recusal motion and realized that it doesn't matter if you've got connections to one side, because nobody really pays attention to judicial ethics.
Bernstein v DOJ is the case. It's in the 9th Circuit, so it wouldn't be binding precedent in the 2nd Circuit. Bernstein won at both district and circuit levels, but the case was remanded after the government changed its encryption export policy.
The analysis in Bernstein is very good. They basically say that source code is meant to be read by humans, and therefore is speech. They also rejected the notion that functionality immunized first amendment protection. They also disputed that source code actually was functional.
Kaplan did actually admit that software (source or object) was speech, but he treated it like the symbolic speech of burning your draft card: that is, he claimed that the govenernment was regulating the non-speech elements of conduct that are found in software. These elements, according to him, are the functionality of the software. This does appear to contradict the analysis of Bernstein, at least regarding source code (in addition to being an incompetent assessment of software).
I think this talk of "functionality" is sorely misplaced. Functionality is not conduct -- it is potential conduct. O'Brien was not arrested for carrying a lighter and a draft card, which certainly provided him "functionality" to burn his card.
Nor does "functionality" exist until object code is installed on a physical machine capable of executing it. As the Bernstein court reasoned, voice recognition software will soon make all speech functional.
I've seen many people talk about writing letters to Congress, and urging others to do so. I think it is far more effective to just post your letter. Otherwise it's just vaporware.
I can't believe the people here telling you to sign it. Do NOT do it!
You are required to turn over any inventions that you create as a work for hire to the company, so that you are forbidden by contract from keeping them for yourself. THIS IS TOTALLY DIFFERENT FROM COMMITING PERJURY TO CLAIM NOVELTY OF INVENTION WHERE THERE IS NONE
You should send your former employer and the patent office a letter stating that (1) you do not believe the overbroad patent application should be accepted, because it does not properly represent a novel invention and that (2) you reaffirm that you have relinquished all ownership of any existing patent rights to the company for this invention, but in doing so you will not join them in falsly claiming that any such rights actually exist.
Let G be the quotient group R/Z where R is the real numbers and Z is the integers.
Then 2 + 2 = 4 = 5 rather trivially.
Or, equivalently, face east, turn 2 full rotations clockwise then "add" two more full rotations. You are facing east which is the same direction you face if you turn 5 times.
This case didn't really mean a whole lot. Many of the issues that make the DMCA a bad law either weren't present or weren't raised.
Streambox allowed access to work that was never purchased. This makes a big difference in the fair use analysis.
Streambox lost under 1201(b)(1) which concerns circumvention for copyright infringement purposes. They did also lose an (a)(2) claim, but they have no way to claim their access is authorized by first sale, since there was no first sale.
They didn't press any of the Constitutional claims that were raised to Kaplan. They keep their source code proprietary which indicates that they are not trying to communicate coding ideas.
They can't qualify for the reverse engineering exception because it requires the interoperability not result in copyright infringement.
Re:I'll give it a try.
on
Lawsuits Suck
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· Score: 2
Additionally, I will be talking to the EFF about starting a local chapter. I'm in Indianapolis, if anyone is interested in working with me. People in other cities and states should pursue this route as well.
I sent someone I've conversed with before at the EFF an email about local chapters. I said I wanted to start one in San Antonio. If I get a reply back soon I'll post it here.
Anybody else interested?
Re:I want to help, what can I do?!
on
Lawsuits Suck
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· Score: 5
I feel the same way as you do -- I think this article is a good chance to examine our methods. It' s not always effort than works. Effectiveness beats effort any day.
The main thing I have to say (and this goes for everyone here!) is don't get discouraged, nothing important ever happened without a little adversity. Stubborness is a virute.
1. What else can I do?
Organize! Organize! Organize! Find like minded people and have meetings. Yes, in person. Do things at meetings in groups - lobby. Maybe we can start local chapters of the EFF. College students should create student orgainizations.
Raise awareness. Bring people in that haven't heard. Market the ideas to the public. Example: there should be an EFF booth at every computer show. This is a great way to raise awareness and money.
Keep contacting the legislature. Use mail, phone, and respond to RFC's. Help others to do the same thing. We need to make it fashionable and "cool" to post comments you sent in to forums like this one.
Communicate. We need more mailing lists like the ones at Openlaw. We need more websites like cryptome. We need to get more news and magazines involved.
For state issues like UCITA, try to get a face to face meeting with your state representative. This is where the rubber hits the road. When combined with A) this could be very effective.
We need to rub-shoulders with lawyers and law-students. When people like Martin Garbus help us, we need to make sure they know that A LOT of people see it. We should give awards
2. Who could head up an "internet users association" like we need? (possibly someone at the EFF? IEEE? ACM? A friendly lawyer you know?) I'd say the EFF is the best choice. Let's talk to them about starting local chapters. The person who is most able to create EFFECTIVE ACTION should lead. Don't be afraid to grab the torch, you can always pass it off later.
3. What do we have to do to get this person (or people) to work on our behalf? Lead by example. Get the message out. They will come.
4. How do we get enough members to join? Make it fun. Freedom sells itself, so stick to principles. Be inclusive. Be passionate. Be stubborn.
5. Once we get members, how do we become an unstoppable juggernaut lobby like the NRA? Worry about that later. If we worry about not having the force of the NRA, we'll never have the force of the NRA. People will join if they identify with the principles that we lobby for.
I just sent the email below to my House representative. It's pretty easy to do this online at the sight
http://www.house.gov/writerep/
__________________________________
To the Honorable Lamar S. Smith:
I am an Oracle database consultant in your district. I work at Randolf Air Force Base in San Antonio, supporting the Air Force Recruiting Service.
I write to you to express my very strong concern that the Digital Millenium Copyright Act, which passed in 1998, is a bad law that urgently needs to be revised or even repealed. I believe that the law does not adequately reflect the "delicate balance" that several hundred years of copyright jurisprudence has created. The troublesome section is 1201 of the Copyright Act (Title 17).
My objections to this law are as follows:
- It guts "Fair Use" completely
- It stiffles competition, especially that of "open source" software
- It risks antitrust abuse by creating two separate rights "access" and "copyright" that industry trusts exploit through tying and collusion
- The reverse engineering 1201(f) exception is too narrow and is unclear
- The encryption research 1201(g) exception is too narrow and is unclear
- Despite 1201(c)(4) and 1203(b)(1), the law is being used to chill open discourse and free speech on the science of computer security matters
- The law is ambiguous if copyright owner authority to access can be retained after "First Sale" of the copy, contradicting the "just rewards" purpose of the copyright monopoly and diminishing property rights
- Protecting insecure systems with laws fosters insecurity not security; Most computer scientists support "full disclosure" of security flaws.
I do not support piracy, and recognize that authors deserve financial reward as inducement to create. I note however that there is no "intent" language in the law: it reaches far beyond piracy into the realm of legitimate activity. The attempt to create enumerated exceptions fails miserably to address this. Just as fair use must be judged on a case-by-case basis, so too would a claim of "fair access".
This bill appears to go beyond what is needed by granting wholesale control of the use of sold works to the copyright holder, who all to often isn't even the actual author, but is a corporate mammoth. I am not willing to sacrifice my intellectual property rights as a consumer to line the coffers of the MPAA and RIAA. I am certainly not willing to stiffle the free speech rights of open source programmers, who give generously to the intellectual commons, and exemplify copyright's calling "to promote the progress of science".
...it has long been clear under U.S. law that the placement of copyrighted material into computer memory (ie RAM) is a reproduction of that material.
This is actually true. For computer programs, it is explicitly allowed as non-infringment under section 117. For other things, it's almost certainly fair use following Betamax and Diamond Multimedia.
In fact, this is an important point to make when considering shrinkwrap/clickwrap licences. You don't actually get anything you didn't have by virtue of buying the software, so if the "contract" asks you to waive things like the right to reverse engineer, then there is no "consideration" (contracts require each side to give up something), and hence there is no contract.
There were two RFC's that were reported here:
- One concerning the "rule-making" for granting exceptions to 1201(a)(1)
- One for a "study" on the DMCA and section 109 (First Sale) and 117 (Computer Programs).
Each lasted two rounds: comments and reply comments.
Actually, there was another one on encryption research, but it went forward in July of 1999. The Copyright Office concluded it was too early to make any conclusions.
How is it that they've been chosen to be included in this? Didn't lots of people submit comments?
Ummm. How sad. The RFC was open to the general public. You seem to think that this doesn't include you, and that "lots of people" [besides yourself, obviously] will handle it.
I thought Paul's comments were very cogent. Paul has participated since day 1 at Openlaw. Your submission, on the other hand, was vapor (actually not even that), so I don't think you have earned the right to criticize.
Oh, and you spelled my name wrong. I do describe my self as "a private individual", because that's what I am. I was "chosen" by a self-selection process similar to the way most contributors are chosen in open processes: I got off my ass and did something.
Instead, our products were reversed engineered and what has occurred is a public display of what is clearly our intellectual property.
If your "intellectual property" is a trade secret, then "it ain't secret no more". Bummer for you, but under the Uniform Trade Secrets Act (UTSA) adopted by 40 states, reverse engineering is not an "improper means" for appropriation of a trade secret. Perhaps you guys are confused about your rights under the law? What exactly do you believe created a "duty to maintain its secrecy"? If you think that it was the purchase of your product alone, then you are living in a fantasy world.
If your "intellectual property" is a copyright, then you are way out on a limb, since copyright does not protect facts or ideas, but only the particular expression of them, and even then only if the fact/idea does not "merge" with it's expression.
If your "intellectual property" is a patent, then it's already disclosed (that is a requirement for getting a patent), so I doubt you should be worried about "public display". This is really the only form of IP where you might have a case.
Slashdot Mirror
There is a part of the constitution that says that the federal government can't do this.
Most of these laws (including the DMCA, if you read the legislative history carefully) are justified by an extremely expansive reading of the commerce clause. This is the root cause of all of these problems.
It used to be, until FDR pressured the Supreme Court during the height of the Great Depression with the "Court Packing" plan, that the right to "liberty" recognized by the 5th amendment actually acted to protect individuals from overreaching acts of Congress. In the late 30's the Supreme Court overturned these precedents and ended "substantive due process". The effect was that the level of scrutiny given to commerce clause based laws was sharply reduced. Congress has filled itself with the people most able to extort campaign contributions in return for regulatory favors.
The (somewhat) good news is that the pendelum has finally started to swing the other way. The Supreme Court has started to tell Congress that it cannot use the commerce clause to do whatever it wants. It started with US v Lopez where Rehnquist wrote a 5-4 decision striking down a Federal Gun-Free Schools law. They have followed with two other similar decisions, including striking down the Federal Violence Against Women Act, saying that the commerce clause could not be used to justify usurping police powers from the States. So far, though, they have only turned back criminal Federal statutes that States traditionally regulate.
Clarence Thomas wrote a concurring opinion in US v Lopez, where he stated that he believed the Supreme Court had, over the years, strayed badly from the original intent of the Commerce Clause.
A basic freedom? Really? This "basic freedom", by which I assume you mean "fair use" provisions was created by US Congress in the late 60s with the passage of the Copyright Act.
Yes, actually, fair use is a First Amendment freedom. You have the facts wrong about the 60's. Congress first "restated" the principle of fair use in 1976. They added to the Copyright Act, essentially unchanged, a "judge-made" doctrine enunciated in 1841, but with roots going back to the British Statute of Anne which predates the US Constitution.
Copyright has a special place in the Constitution in that it temporarily protects original "writings" Copyright is inherently a form of speech regulation, so any deviation from the Constitutional purpose should hit the sharp razor of the First Amendment. It is only because of fair use and a narrow focus of protection provided by Copyright to the exact expression rather than the underlying facts and ideas that saves the Copyright Act from the First Amendment Axe.
The Supreme Court spoke rather definitively on the subject of fair use in the case Harper & Row v Nation Enterprises, 471 U.S. 539 (1985) .
You can also write to your Senator. Look them up here.
I also sent the above letter to Phil Gramm and Kay Bailey Hutchison.
I sent the following letter to my representative. You can email your representative easily by going here
____________________
To the Honorable Lamar S. Smith:
I am a database consultant in your district. I work at the Air Force Recruiting Service Headquarters at Randolph Air Force Base. My work there brings me in contact with technology and information system security issues on a daily basis.
I recently read an article about the Council of Europe's Draft Cybercrime treaty that frankly scared me. The article is available at this URL:
http://www.msnbc.com/news/480734.asp#BODY
Let me be clear: this treaty would be a disaster that would threaten national security and the health of electronic commerce. The idea of the treaty is dead wrong. "Full disclosure" of computer security flaws is essential for system administrators to protect there own systems and it is also critical to eliminate denial on the part of software vendors and to track the effectiveness of responding to security concerns. It is also a First Amendment right to have open discussion on security flaws.
I believe that the U.S. delegation to this treaty is incompetent and should be recalled before serious damage is done. They obviously have little understanding of what it is that they are regulating.
Sorry California you do not have the authority. Title 17 of the US Code section 301(a):
301. Preemption with respect to other laws (a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
This page on Dell's site might also be of interest.
Bingo. Dell itself reports July 25, 2000 SPECweb99 results. Compare items 2 and 7 to find a common platform score comparison.
(rank, vendor, system, score, #CPU's, OS)
2* DELL PowerEdge 6400/700 4200 4 Red Hat Linux 6.2
7* DELL PowerEdge 6400/700 1598 4 Win 2000 Adv Server
2) Stand aside and hope it doesn't hit you. In so doing, you risk getting caught by an overbroad, even an unconstitutional injunction. The deal here is, that if a naughty injunction comes your way from a case in which you could have tried to intervene, but didn't, and you are "acting in concert" with a party, you are both: (1) bound to the injunction; and (2) have no recourse to appeal! (You would likely be granted privilege to file an amicus brief if the parties appeal, but there will be no appeal if they decide to settle or can't afford the appeal).
Right, but "acting in concert", according to the opinion, is equivalent to "aiding and abetting" the actual defendent. I read this as saying that mirroring by 3rd parties probably doesn't qualify unless there is some direct interaction with the named defendant.
The idea is that if the named party acts by way of an abetter that this is really the same as the party acting, so that the side was represented. If Courts don't properly construe the intimacy required, then there is danger, yes. But it will always be true that there is danger if Courts make mistakes. Appeals cover this and due process should prevent two distinct interests from being treated as one.
What shortage? We get tons of people that apply for our IT positions here... farmers, lawyers, teachers, child-care workers, nuclear waste disposal engineers, israeli air force pilots... Yes, these are -actual- applicants. What's sad is that these are some of the ones that make it through the first screening... yikes.
Actually it's pretty obvious to me that the fact that we never bring these people into the profession is precisely why there is a shortage. If you search monster.com for intro level jobs doing anything IT, you won't find any. "Junior level DBA wanted" or "C++ programmer with 0-2 years experience wanted" just isn't out there. The problem is that experience and talent are only weakly correlated and the clueless fools (managers, HR dolts, and recruiters) would rather have an idiot with 5 years experience than a genius who programs for fun in his spare time.
I'm willing to bet that within 6 months at least half of the folks in your list could be earning money for you. Sure the training will cost a little, but it's ok to pay entry level people less to offset this.
Hire the one that seems "smartest" with a good work ethic; offer them half of what you would someone more experienced; pay for them to go to a training class in everything you think they should know; make them agree to reimburse training costs if they leave within 2 years; Give them a 20% raise every six months for the first two years.
My guess is that if you advertised these things you'd have some extremely gifted applicants who want to change fields and would probably be highly competent MUCH faster than you think.
He may be planning to retire after the election (I've heard he's been holding out for a republican president)
Or, maybe he read judge Kaplan's recusal motion and realized that it doesn't matter if you've got connections to one side, because nobody really pays attention to judicial ethics.
Bernstein v DOJ is the case. It's in the 9th Circuit, so it wouldn't be binding precedent in the 2nd Circuit. Bernstein won at both district and circuit levels, but the case was remanded after the government changed its encryption export policy.
The analysis in Bernstein is very good. They basically say that source code is meant to be read by humans, and therefore is speech. They also rejected the notion that functionality immunized first amendment protection. They also disputed that source code actually was functional.
Kaplan did actually admit that software (source or object) was speech, but he treated it like the symbolic speech of burning your draft card: that is, he claimed that the govenernment was regulating the non-speech elements of conduct that are found in software. These elements, according to him, are the functionality of the software. This does appear to contradict the analysis of Bernstein, at least regarding source code (in addition to being an incompetent assessment of software).
I think this talk of "functionality" is sorely misplaced. Functionality is not conduct -- it is potential conduct. O'Brien was not arrested for carrying a lighter and a draft card, which certainly provided him "functionality" to burn his card.
Nor does "functionality" exist until object code is installed on a physical machine capable of executing it. As the Bernstein court reasoned, voice recognition software will soon make all speech functional.
Here's my letter
I've seen many people talk about writing letters to Congress, and urging others to do so. I think it is far more effective to just post your letter. Otherwise it's just vaporware.
You can email your House Rep from http://www.house.gov/writerep/
I can't believe the people here telling you to sign it. Do NOT do it!
You are required to turn over any inventions that you create as a work for hire to the company, so that you are forbidden by contract from keeping them for yourself. THIS IS TOTALLY DIFFERENT FROM COMMITING PERJURY TO CLAIM NOVELTY OF INVENTION WHERE THERE IS NONE
You should send your former employer and the patent office a letter stating that (1) you do not believe the overbroad patent application should be accepted, because it does not properly represent a novel invention and that (2) you reaffirm that you have relinquished all ownership of any existing patent rights to the company for this invention, but in doing so you will not join them in falsly claiming that any such rights actually exist.
Let G be the quotient group R/Z where R is the real numbers and Z is the integers.
Then 2 + 2 = 4 = 5 rather trivially.
Or, equivalently, face east, turn 2 full rotations clockwise then "add" two more full rotations. You are facing east which is the same direction you face if you turn 5 times.
Math on circles is perfectly reasonable.
This case didn't really mean a whole lot. Many of the issues that make the DMCA a bad law either weren't present or weren't raised.
Streambox allowed access to work that was never purchased. This makes a big difference in the fair use analysis.
Streambox lost under 1201(b)(1) which concerns circumvention for copyright infringement purposes. They did also lose an (a)(2) claim, but they have no way to claim their access is authorized by first sale, since there was no first sale.
They didn't press any of the Constitutional claims that were raised to Kaplan. They keep their source code proprietary which indicates that they are not trying to communicate coding ideas.
They can't qualify for the reverse engineering exception because it requires the interoperability not result in copyright infringement.
Additionally, I will be talking to the EFF about starting a local chapter. I'm in Indianapolis, if anyone is interested in working with me. People in other cities and states should pursue this route as well.
I sent someone I've conversed with before at the EFF an email about local chapters. I said I wanted to start one in San Antonio. If I get a reply back soon I'll post it here.
Anybody else interested?
The main thing I have to say (and this goes for everyone here!) is don't get discouraged, nothing important ever happened without a little adversity. Stubborness is a virute.
1. What else can I do?
2. Who could head up an "internet users association" like we need? (possibly someone at the EFF? IEEE? ACM? A friendly lawyer you know?)
I'd say the EFF is the best choice. Let's talk to them about starting local chapters. The person who is most able to create EFFECTIVE ACTION should lead. Don't be afraid to grab the torch, you can always pass it off later.
3. What do we have to do to get this person (or people) to work on our behalf?
Lead by example. Get the message out. They will come.
4. How do we get enough members to join?
Make it fun. Freedom sells itself, so stick to principles. Be inclusive. Be passionate. Be stubborn.
5. Once we get members, how do we become an unstoppable juggernaut lobby like the NRA?
Worry about that later. If we worry about not having the force of the NRA, we'll never have the force of the NRA. People will join if they identify with the principles that we lobby for.
I haven't really followed UCITA much farther than knowing that it would bolster clickwrap licences, which alone is enough to make me detest it.
Can anybody post links to a good summary of what's wrong with the law? I'm looking for bullet-points, not a novel.
I just sent the email below to my House representative. It's pretty easy to do this online at the sight
http://www.house.gov/writerep/
__________________________________
To the Honorable Lamar S. Smith:
I am an Oracle database consultant in your district. I work at Randolf Air Force Base in San Antonio, supporting the Air Force Recruiting Service.
I write to you to express my very strong concern that the Digital Millenium Copyright Act, which passed in 1998, is a bad law that urgently needs to be revised or even repealed. I believe that the law does not adequately reflect the "delicate balance" that several hundred years of copyright jurisprudence has created. The troublesome section is 1201 of the Copyright Act (Title 17).
My objections to this law are as follows:
- It guts "Fair Use" completely
- It stiffles competition, especially that of "open source" software
- It risks antitrust abuse by creating two separate rights "access" and "copyright" that industry trusts exploit through tying and collusion
- The reverse engineering 1201(f) exception is too narrow and is unclear
- The encryption research 1201(g) exception is too narrow and is unclear
- Despite 1201(c)(4) and 1203(b)(1), the law is being used to chill open discourse and free speech on the science of computer security matters
- The law is ambiguous if copyright owner authority to access can be retained after "First Sale" of the copy, contradicting the "just rewards" purpose of the copyright monopoly and diminishing property rights
- Protecting insecure systems with laws fosters insecurity not security; Most computer scientists support "full disclosure" of security flaws.
I do not support piracy, and recognize that authors deserve financial reward as inducement to create. I note however that there is no "intent" language in the law: it reaches far beyond piracy into the realm of legitimate activity. The attempt to create enumerated exceptions fails miserably to address this. Just as fair use must be judged on a case-by-case basis, so too would a claim of "fair access".
This bill appears to go beyond what is needed by granting wholesale control of the use of sold works to the copyright holder, who all to often isn't even the actual author, but is a corporate mammoth. I am not willing to sacrifice my intellectual property rights as a consumer to line the coffers of the MPAA and RIAA. I am certainly not willing to stiffle the free speech rights of open source programmers, who give generously to the intellectual commons, and exemplify copyright's calling "to promote the progress of science".
I could've sworn that I submitted comments.
There seems to be some confusion by several people saying "hey, where's my comment". There were several different opportunities to submit comments:
1201(a) Rule Making Comments
1201(a) Rule Making Reply Comments
1201(a) Rule Making Post-Hearing Comments
Section 109 & 117 Comments
Section 109 & 117 Reply Comments
Encryption Research Comments from July 1999
...it has long been clear under U.S. law that the placement of copyrighted material into computer memory (ie RAM) is a reproduction of that material.
This is actually true. For computer programs, it is explicitly allowed as non-infringment under section 117. For other things, it's almost certainly fair use following Betamax and Diamond Multimedia.
In fact, this is an important point to make when considering shrinkwrap/clickwrap licences. You don't actually get anything you didn't have by virtue of buying the software, so if the "contract" asks you to waive things like the right to reverse engineer, then there is no "consideration" (contracts require each side to give up something), and hence there is no contract.
There were two RFC's that were reported here:
- One concerning the "rule-making" for granting exceptions to 1201(a)(1)
- One for a "study" on the DMCA and section 109 (First Sale) and 117 (Computer Programs).
Each lasted two rounds: comments and reply comments.
Actually, there was another one on encryption research, but it went forward in July of 1999. The Copyright Office concluded it was too early to make any conclusions.
How is it that they've been chosen to be included in this? Didn't lots of people submit comments?
Ummm. How sad. The RFC was open to the general public. You seem to think that this doesn't include you, and that "lots of people" [besides yourself, obviously] will handle it.
I thought Paul's comments were very cogent. Paul has participated since day 1 at Openlaw. Your submission, on the other hand, was vapor (actually not even that), so I don't think you have earned the right to criticize.
Oh, and you spelled my name wrong. I do describe my self as "a private individual", because that's what I am. I was "chosen" by a self-selection process similar to the way most contributors are chosen in open processes: I got off my ass and did something.
The FCC is accepting comments on this matter through Sept. 7, and may issue a ruling as early as Sept. 14.
Why are you teasing us? Where is the announcement/instructions on how to submit comments?
Instead, our products were reversed engineered and what has occurred is a public display of what is clearly our intellectual property.
If your "intellectual property" is a trade secret, then "it ain't secret no more". Bummer for you, but under the Uniform Trade Secrets Act (UTSA) adopted by 40 states, reverse engineering is not an "improper means" for appropriation of a trade secret. Perhaps you guys are confused about your rights under the law? What exactly do you believe created a "duty to maintain its secrecy"? If you think that it was the purchase of your product alone, then you are living in a fantasy world.
If your "intellectual property" is a copyright, then you are way out on a limb, since copyright does not protect facts or ideas, but only the particular expression of them, and even then only if the fact/idea does not "merge" with it's expression.
If your "intellectual property" is a patent, then it's already disclosed (that is a requirement for getting a patent), so I doubt you should be worried about "public display". This is really the only form of IP where you might have a case.