[wordup] more on sklyarov and the dmca

[Adam Shand]

The article on inside.com is pay per view unfortunately but the reponse is
still interesting.

Via: Herr ToddoT Nagengast <todd at gnosh.net>
From: huaiyu_zhu at yahoo.com

With regard to Roger Parloff's article at www.inside.com:

This article is perhaps the first time the pro-DMCA side presented
anything credible and honest for their arguments.  So it is also a good
opportunity to refine our own thoughts and arguemnts.

One thing that will become clear over the long run is that neither side
will win the argument by making claims on abstract rights.  The truth is
that there is no feasible technology that can perfectly protect the rights
of everyone without infringing on the rights of others.

Parloff's point is that by making unprotected copies available, even if
most of these are for legitimate uses, Sklyarov created an opportunity for
illegal copying.  And in the digital age it only takes one illegal copy to
spread to the whole Internet.  And punishing Sklyarov is the most
effective way to prevent this from happening.

I think this is a valid argument for one angle of the problem.  But there
are more important counter arguments.

It is true that digital technologies pose new threats to certain rights of
certain sections of society, while providing new opportunities for many
people to enjoy their rights in new ways.  Just as any new technology has
always done.

But DMCA holds the IP rights as absolute right that trumps human rights
and consumer rights of everybody else with little contrition.

Parloff effectively says that the right of Adobe to protect their profit
is very important, because it is a very big financial sum (even though it
is made up of $9 sales), while the right of researchers to free speech,
the right of consumers for fair use, and the right of disabled people for
equal access should take second seat, because they don't have that much
financial stakes.  (He actually made some calculations.)

He essentially says that it is acceptable to punish a tool maker if the
tool can potentially be used unlawfully and if it would be difficult to
catch and punish those who actually break the law.  If it takes away the
personal freedom and the freedom of speech for one individual, so be it,
as long as this creates a bottleneck for the unlawful activities.

He implies that it might even be reasonable to punish an employee of a
toolmaker if it is difficult to punish the company. Or just hold him
hostage until such time that its managers can be caught.

He implies that it is acceptable to hand out *preventive punishments* even
if no one has ever used the tool for any unlawful uses just yet, as long
as the possibility for unlawful use exists.

This is very similar to the way some totalitarian regimes justify their
infringement on human rights:  mistreating dissidents is necessary to
ensure social stability, which is deemed to have a larger value.

"If an idea is dangerous, punish the messenger before it spreads."

DMCA allows one side of the conflict to infringe on a variety of
fundamental rights of everybody else, just so as to protect its own
financial rights from infringements that might not have materialized.

If we hold it to be self-evident that all men are created equal, then such
biased laws are very wrong.

Huaiyu Zhu

[Permision hereby granted for inclusion into any collection of comments
/counter-comments.  Editorial changes (such as linking to actual articles)
welcome and appreciated.]
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