[Patents] Re: Once more on Euro-DMCA

[Bernard Lang <Bernard.Lang@inria.fr> (Bernard Lang)]

I am aware of all that, I do not underestimate DMCA and I share your
concern.

  Very probably the 2 fights should be merged and consucted
simultaneously, especially if one considers that there are extremely
dangerous synergies between DMCA and software patents.

  My remark, and priority to software patents is only that
  - it passes a threshold for patentability between the material and
the intangible.  Once the door is open, all hell may get loose.
  - more practically: if software patents are accepted, hundreds of
thousnads of such patents will be awarded, and it will be near
impossible to reverse that.  ... while other laws can "more easily" be
reversed  ...  technically, if not politically.
  - people will directly suffer from DMCA and may lobby to have it
changed.  Same for artists.  Software patents are a lot more
insidious.

   but my main reason is the second one.

Now, as I said, it may be wise to fight both at the same time.
I am not sure.

Bernard


On Mon, Sep 03, 2001 at 02:53:33PM +0200, Jozef Halbersztadt wrote:
> Bernard Land (once) wrote:
> > ??  european DMCA
> >
> > well it has been published ... and is pretty bad
> (...)
> > but I have not yet had time to analyze.  I consider the patent issue
> > more essential, more urgent, because less reversible.
> >
> 
> Battle over logic patents is far from over. But the failure to
> legitimize them in 2000, the result of consultation exercise of the
> DGIM make Europe different place to live. One can now observe efforts
> to keep status quo, and create for open sosoftware a special niche
> where attorneys are not intervening. The task before us is reject this
> kind of proposals and left no doubts that we can agree only on a law
> that treats closed/proprietary and open/free software at equal
> footing. This need a mobilization but I do not think it will be
> difficulty to us to undertake.
> 
> But I am afraid you underestimate the Euro-DCMA problem. It is easy to
> observe that in the US digital copyright is the main battle line
> between freedom and intellectual slavery.
> 
> If you look in TRIPs 1994, in WIPO copyright treaty 1996 you will see
> short one sentence  clause. Article 11 - Obligations concerning
> Technological Measures: "Contracting Parties shall provide adequate
> legal protection and effective legal remedies against the
> circumvention of effective technological measures that are used by
> authors in connection with the exercise of their rights under this
> Treaty or the Berne Convention and that restrict acts, in respect of
> their works, which are not authorized by the authors concerned or
> permitted by law."
> 
> The two treaties enabled Hollywood and Silicon Valley corporate
> lobbyists to persuade Congress in 1998 to enact a multipage statute
> under label of protecting of "digital property" against theft.
> According to it any use of copyrighted material against the will of
> the content controller is now theft. The perfect control is becoming
> an objective. It is not Jefferson's conception of the balanced package
> of intellectual property and an intellectual common. The controller is
> not an author. It is vision of perfect control of Orwell's Ministry of
> Truth.
> 
> As Lawrence Lessig wrote recently (30 August) in his "A Commitment to
> Candid Speech":
> http://cyber.law.harvard.edu/filter/lessig-sklyarov.html
> "(...) it is quite clear that Congress hadn't thought through the mess
> they were creating when they enacted the DMCA. Congress never
> considered the prospect of an industry group threatening a computer
> science professor with DMCA liability if he spoke about his research
> in cryptography. (See the RIAA's letter to Princeton professor Edward
> Felten.) Nor did it imagine that the law would be wielded against a
> magazine for including a link to a site where cracking code existed.
> (See the prosecution against the magazine 2600.) Congress didn't
> consider these matters; under lobbyists' pressure, it just raced in to
> legislate. The result has been a mess of complications, including the
> mess that landed Sklyarov in jail."
> 
> To me the most instructive is case of 2600 Magazine . Here part of EFF
> Press Release -- Jan. 26, 2001
> http://www.eff.org/IP/Video/MPAA_DVD_cases/20010126_ny_eff_pressrel.ht
> ml
>        Diverse Groups Unite to Defend Freedom
>        of Expression Against DMCA
> (...)
> Background
> Motion Picture Association of America (MPAA) members, beginning at the
> tail end of 1999, filed suit under the controversial Digital
> Millennium Copyright Act (DMCA) to prevent the online availability of
> a free program called DeCSS which cracks the extremely weak encryption
> (CSS) "protecting" commercial DVDs from being played on computer DVD
> drives that run under operating systems that are not "approved" by the
> movie industry, including Linux. The MPAA has alleged that DeCSS is a
> piracy tool, even though DVDs can be easily pirated without DeCSS, and
> DeCSS is required for Linux users to be able to play their legally
> purchased and owned DVDs on their own computers. The case at hand,
> officially Universal v. Reimerdes named several defendants, including
> 2600 Magazine, for posting or even linking to DeCSS, alleging
> violation of DMCA provisions against distribution of copyright
> infringement tools. A similar case in Connecticut was also filed, and
> a very different case (based on state trade secret law) was filed by
> MPAA members (some the same as in the NY and CT cases, others
> different) against hundreds of plaintiffs, in California. MPAA members
> even went so far as to have Norwegian law enforcement authorities
> (probably wrongfully) arrest the 16-year-old co-author of DeCSS, on
> more far-fetched copyright infringement-related accusations.
> 
> EFF believes that the DMCA harms - nearly eliminates - all of the
> public's fair use rights, and makes criminals of people doing
> perfectly legitimate things. Our Campaign for Audiovisual Free
> Expression (CAFE) advances the following principles in response to the
> DMCA and related intellectual property holder "land grabs" against
> your rights:
> 
> 1.Piracy of an artist's work is illegal. Fair use is not.
> 2.We have the right to hear, speak, learn, sing, think, watch, and be
> heard.
> 3.No one should assume by default that we're criminals, and the
> technology we use shouldn't do so either.
> 4.We have a right to use technology to shift time & space (including
> using a media player of choice, when we want, and where we want, with
> content we legally have access to.)
> 
> These facts and the rights they uphold are already a long-standing
> feature of American intellectual property law. The new DMCA law turns
> most of it on its head, and allows moneyed industries to attack
> underfunded individuals, publishers and organizations with near
> impunity, for doing what they have a right to do in the first place.
> 
> (...)
> End of the Press Release
> 
> As you know the same corporate lobbyist persuaded the European Union
> to produce a Directive almost the same as the US DMCA. As in the US
> the pretext is the WIPO copyright treaty. But if you look at the WIPO
> site you can find that the majority of European countries (exception
> is a dozen countries of East Europe), have not yet ratified the
> copyright treaty. It means that European national parliaments will
> debate together implementation of the Directive and ratification of
> the Treaty. This make possible to campaign for rejection of the Treaty
> because as is seen on example of DCMA-like laws it enables expansion
> of copyright in a wrong direction.
> 
> Jozef Halbersztadt
> 

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