But Just a Little More Pessimism

I’m glad so many people showed up, but, at the same time, I wonder how many couldn’t.  It’s not like they made this convenient for people.  10 AM on a Wednesday – how convenient is that for most people? Hell, it wasn’t easy for me to make time for it, and I’m just a jobless student. 


And we found out about all this at the last minute.  Some states weren’t so lucky.  


Lobbying sure ain’t easy.  I’m glad we were able to make such a difference today. I only wish it were easier to do so in general.

MA Super DMCA Hearing Report

First, I should mention that I have notes from the first hour and a half here.  Sadly, I had to miss the rest.  But I managed to catch John Palfrey’s rousing speech and many other fantastic presentations (John’s also got comments here).  Given the amount of people there, I assume that the hearing went on for several more hours.

Now, onto my thoughts and feelings:

It was a good day in the copyfight

At least, that’s my impression.  I’d say around 20 people, maybe 25, showed up to oppose the bill. 
We filled the room and the committee’s minds.  It seemed like the
state representatives understood that this bill was very
problematic because of vague language. They also seemed to understand
that the bill’s content in general, in its target and its
tactics, is troubling.  They want to ensure law enforcement
is effective, but they get that there’s something wrong here.

They knew we were coming, too.  Before the hearing, some
committee members were speaking with an MPAA rep about the stir this
has caused and the bill’s really vague language.  One of
them said something to the effect of, “Professor Felten stirred up
those bloggers.”  I was surprised that he even knew what a blogger
is.  Certainly, he used that mildly insulting tone that some
people use when they’re talking about political activism – the “oh,
those meddling kids are back again” tone. At the same time, his
tone seemed to indicate that this band of security experts, privacy
defenders, geeks, programmers, lawyers, businessmen, students, and
copyfighters was actually being recognized as a coherent group. 
We are a set of people with a common set of concerns.  We can and
will mobilize effectively and quickly. You can count on us showing
up when you try to pass legislation like this.

Maybe this has been the case for years. Certainly, I
experienced a similar feeling when I watched local news
reports about the Free Dmitry protests
I attended.  But it was important (for me) to watch actual
legislators realize that their citizens will organize and fight for
their rights.

It was a beautiful thing to watch, and I am grateful to all of you
who showed up.  I wish I had gotten a chance to meet you all.

While everyone there gets a gold star for the day, I should point
out that David Turner of the Free Software Foundation (I think that was
his name) and John Palfrey were really stellar.  Turner
made very clear the dangers of prohibiting all unauthorized
access, touching on issues of fair use,
technology innovation, and our general intuition (that is, isn’t
it ridiculous to think the MPAA should determine whether we can record
tv programs?). Palfrey gave the committee an overall sense of the
direction of Internet law and the dangers of special interests
dictating the legislative agenda.

Also, everyone brought up how ridiculous the MPAA rep’s focus on intent was. 
First of all, it’s important to realize how little of the bill actually
speaks of intent.  For instance, 42B(c) doesn’t discuss intent for
using or distributing “unlawful access devices.” Intent comes up in
42B(d) when addressing plans for manufacturing access
devices, but it isn’t really significant.  Intent is only
important if you were creating a device that was not intended to
circumvent; all circumvention is still illegal under the definition of
“unlawful access device” and 42B(c). People picked up on problems like
this and spelled them out for the committee. I hope the legislators got
the point.

By the time I had to leave, everyone else had basically
said everything I would have.  I was hoping someone would bring up
the idea that even if you built exemptions into the circumvention
device prohibitions, you wouldn’t cover everything because fair
use is an evolving concept.  Perhaps someone brought this up
later.  (Even though I didn’t get to speak, I did get to submit
testimony. I presented copies of Professor Felten’s criticisms and the EFF’s “Unintended Consequences: Four Years under the DMCA,” along with comments describing their relevance.)

In any case, I think the committee got the point.  They know
there’s something wrong with the telecommunications and access
device prohibitions. They know they have to study the issue more. 
They know they need to listen to more than just the MPAA.

So, a job well done.

[Updated to correct David Turner's name.]

Criminalizing the Tool, Not the User and the Use

Via Lawmeme: “What Federal Gun Control Can Teach Us About the DMCA’s Anti-trafficking Provisions.”


I’ll need to read this one soon. As I’ve said before, I’ve always been a little skeptical of this analogy. For one thing, guns have that whole 2nd Amendment backing them up – kinda complicates the situation.  Also, it doesn’t look like he examines other similar bans, like prohibitions on drug paraphernalia, burglary tools, and wiretapping equipment.  I wonder why he focused on guns only.