Re: DMCA hearings and protests

On Wed, May 31, 2000, Dodi Schultz <schultz[_at_]compuserve.com> wrote:
>
> On Tue, 30 May 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
> >
> > An arm of the Church of Scientology demanded that e-Bay take down
> > the auction offer and wrote e-Bay that it owned the copyright to
> > the e-Meter and that if e-Bay did not take down the auction it
> > would be in violation of the DMCA. The seller complied rather
> > than risk jail [...]
> >
> > [...] e-Bay has also been accused of taking down auctions of
> > Microsoft software upon receipt of similar demand letters [...]
> > Microsoft suspects the software is counterfeit, while the sellers
> > claim the software was legitimately purchased and resellable under
> > First Sale doctrine.
> >
> > I and others claim [the DMCA] is being used to stifle free speech
> > and to deprive customers of their property; it is a legitimate
> > matter for us to discuss here.
>
> Eric, I'll accept your recitation of the facts as accurate.
>
> Copyright does protect software; it does not protect devices. The
> fact that the Scientologists erroneously cited a copyright law in
> demanding the removal of a device from sale, and eBay complied with
> that demand (because they erroneously believed that law applied?
> because they found the demand justified for other reasons? because
> they were scared?), is not relevant. This isolated incident
> involving mistaken application of the law simply has nothing to do
> with the present discourse.
>
> Yes, of COURSE whether or not the DMCA is a fair and good law on
> copyright, or in conflict with the Bill of Rights, is a legitimate
> matter for discussion here. Let's not distract and detract from
> that discussion by setting up straw e-meters.

Dodi -

You're wrong here on two accounts. The first is that your basic premise, that copyright can not properly be applied to a physical object like the e-meter, is incorrect as a general statement. It may (or may not) be correct as it relates to the type of device we have taken to calling an e-Meter. But think of another device: early video games. These games were hardcoded into their chip sets, but clearly are protected by copyright, even though the only manifestation of their coding is hardwired. (note this is different from the mask of the chip, protection for which came somewhat later). I only point this out to make the point that it may be legitimate to request someone take down a listing for a "device."

The second point is more important. The *mis*application of a law is just as important as its application in its discussion. Frankly, your curmudgeonly approach gives a bad name to all the rest of us who are pro-copyright on this list. DMCA allows easy self-help, and to that extent is a bad law. Just about every law which allows easy self-help is a bad law. We should not sacrifice a greater good (Copyright) to protect something which is marginal at best (an easily abused right to demand instant satisfaction).

There are countless cases written which start with the phrase: "A preliminary injunction is an extreme remedy which should only be granted in the most limited circumstances." Courts don't like making snap decisions without full knowledge of the facts, and with good reason. The DMCA doesn't even require as much as is necessary to get a TRO. I have to go to court to get you to stop hitting me, but to get you to take down your web page critiquing (or selling an authorized copy of) my work, all I have to do is write you a letter.

One final analogy: your argument is something like saying, yes, the Alien and Sedition laws may have been misapplied, but the question we should be asking is whether, as written, they protected against sedition.

Eric has given the group a good example of a terrible mis-application of an ill-conceived law. The question should not be whether the DMCA is a good or fair copyright law, but rather, given that it is a copyright law, is it good or fair?

-David Hale
 <dhale[_at_]aggt.com> Received on Mon Jun 05 2000 - 13:42:33 GMT