[kwlug-disc] Don Marti on copyright and pro-trust laws

Chris Frey cdfrey at foursquare.net
Fri Jun 24 13:13:49 EDT 2011

Was reading the advogato.org recentlog and came across this.  I found
the linking of anti-trust and pro-trust laws with copyright circumvention
laws rather insightful.

- Chris

    23 Jun 2011 [94]dmarti   [95]>>

   Dean Baker on free markets

   Just got done reading [96]Taking Economics Seriously by Dean Baker. To
   quote from near the beginning of chapter 1:

   "In general, political debates over regulation have been wrongly cast as
   disputes over the extent of regulation, with conservatives assumed to
   prefer less regulation, while liberals prefer more....Conservatives
   support regulatory structures that cause income to flow upward, while
   liberals support regulatory structures that promote equality."

   A little general, but good point. It's refreshing to see a book that
   points out some of the creeping corporate welfare disguised as free market
   policy. And the book is worth reading just for the part about medical

   The first example is the copyright system, though, and Baker unfortunately
   skims over a key difference between actual copyright law and
   anticircumvention law, or what you might call "protrust" law. (We have
   antitrust, and anticircumvention does the opposite, so might as well call
   it protrust.) He mentions the [97]Dmitry Sklyarov case, in which a Russian
   programmer was arrested for writing software to "get around a form of
   copyright protection."

   But "copyright protection" doesn't really describe technological systems
   very well, because there's no DRM system whose restrictions actually map
   to the same boundaries as real copyright law. DRM systems always go
   further. The reason why the [98]CEO of Dmitry's employer got an "Honorary
   Deputy Sheriff" award was that the software was sold to made copies that
   the Fort Bend County Sheriff's Department was permitted to make under
   copyright law.

   From a free market point of view, the problematic part about the kind of
   "anticircumvention" laws that Dmitry was accused of violating is this:
   they effectively turn private feature decisions from technology vendors
   into laws enforced at taxpayer expense. Copyright law has principles such
   as fair use and first sale, which no automatic system can handle.

   A free market view might be something like this: the government won't
   regulate anti-copying and other restriction features of media systems, but
   it won't offer an enforcement subsidy either. Tim Lee wrote, in
   [99]Circumventing Competition: The Perverse Consequences of the Digital
   Millennium Copyright Act,

   "Congress ought not to enact specially crafted copyright legislation to
   assist particular industries in enforcing the terms of their contracts. If
   a contract's terms are arbitrary, unreasonable, and impossible to
   enforce....then the company ought to bear the legal and public relations
   costs that come with monitoring and suing its own customers."

   And the result of the Dmitry Sklyarov case? The US government dropped the
   case against Dmitry himself, continued with the case against his employer,
   and it ended in a [100]jury nullification of the DMCA. Has there been a
   standalone anticircumvention criminal case (not just anticircumvention
   charges added to an infringement case) since then?

   [101]Syndicated 2011-06-23 12:59:40 from Don Marti

  94. http://advogato.org/person/dmarti/
  95. http://advogato.org/person/dmarti/diary/365.html
  96. http://mitpress.mit.edu/catalog/item/default.asp?ttype=2&tid=12083
  97. https://www.eff.org/cases/us-v-elcomsoft-sklyarov
  98. http://www.linkedin.com/in/vkatalov
  99. http://www.cato.org/pub_display.php?pub_id=6025
 100. http://www.freedom-to-tinker.com/blog/felten/more-elcomsofts-acquittal
 101. http://zgp.org/~dmarti/wiki/freedom/baker-on-markets/

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