This being the one-week "anniversary" of Eldred v. Ashcroft in the Supreme Court, I am going to post the various thoughts I've gone over in the week since. I'm feeling rather secure that Lessig covered his arguments well, so my take on the copyright clause here is going to be quite different.

First, to lay the groundwork of the discussion. The Copyright clause grants Congress the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". Any law passed that exceeds this grant of power is unconstutionioal.

Lessig stood before the Supremes and made a very convincing argument for "limited times" being a limit on congress' power. No doubt, he indeed was sucessful in prosecuting that vein; however, in reading the Constituition again last week it was a different word-- "exclusive"-- that lept at me. I realize that the Eldred case cannot address both issues; however I would imagine that this is the single word in the copyright clause that will overturn the DMCA.

Now, (an excerpted) reading the clause without that single word forms "...securing for limited times to authors ... the right to their respective writings...".

"Wait a minute," you may ask, "How does that make things any different?" The answer, I'm afraid, is dreadfully simple and one that seems to be in conflict with all of the US' copyright history. If the clause must establish exclusivity for authors, then it implies that the rest of the population has right to the same writings. (Most simply put, this one word is the link between the copyright clause and the first amendment: what good is free speech if there is nothing to be said?)

Now, examine the effects of the DMCA in the light of whole-populace rights to a work. Either it is illegal because it attempts to extend copyrights for an unlimited time (by not having a exemptive clause for public domain works), or it is illegal because it attempts to secure exclusive rights via mechanisms outside of the grant of power contained in the copyright clause.

Damn, I just had another thought. That single word, "exclusive", also seems to veto / trump the line of reasoning that states computer programs require an EULA because the computer will copy the data in the process of executing it (thus violating copyright). After all, if the rights of the author in nature are not exclusive (and are made so only by the acts of congress), then such a requirement is (depending on the exact wording of the fair use clauses) nonexistent.

This isn't what I expected my first journal entry would be like. While the whole time I knew this would be the place where I put my opinions out to /.'s readership for further examination (rather than make this a personal diary), I didn't think the first entry would be cut and paste.

That just goes to show you how much I don't know about myself.

A nice thread today on the topic of LinuxWorld led me to make a statement- in which I declared I'd post to my journal.
Well, here it is.

I mailed my letter to the DOJ a little too quickly. Rereading it, I would have liked to have made one more editorial pass; however it must lie in the record as I mailed it. So for your viewing pleasure, my Tunney comments to the DOJ on how Microsoft ought to be punished (and afterward, refreshments and light commentary.)

------- To Whom It May Concern:

I am opposed to the proposed settlement in the Microsoft antitrust trial. I feel that,while covering many vital aspects of the case, the current proposed settlement does not fully redress the actions committed by Microsoft in the past, nor inhibit their ability to commit similar Sherman violations in the future.

In the past, the people most hurt by Microsoft were not the hardware distributors or the existing middleware vendors, but the developers of new applications. With each new version of Windows, it has become increasingly impossible for any vendor outside of Microsoft to introduce a new feature -- such as Plug and Play or USB support -- to the market without Microsoft's collaboration. The potential new technologies that have been stifled by Microsoft's vice-like grip on innovation has done the market far more damage than could ever be measured in a dollar amount.

To this end, there is only one possible remedy.

Microsoft, as a software vendor, lives on its' intellectual property. That property does not only include the copyrights it holds on the source code to Windows and the other softwares it sells, but also the patents and trade secrets that Microsoft has, over the years, added to its' code to hinder competition. The copyright and or patent of code, while in some circles of dubious quality, is never categorized in the same manner as trade secrets. The computing sector has an interdependence of intellectual works never before seen in any industry, and the use of trade secrets is the greatest possible artificial barrier Microsoft has erected in its' illegal actions.

Furthermore, this action is in direct opposition of the actions of other software vendors. There are several standards bodies in the computing world, including the International Standards Organization [iso.org] who define standards in many fields, the Institute of Electronic and Electrical Engineers [ieee.org] who help define standards in hardware peripheral design, and the World Wide Web Consortium [w3c.org] devoted solely to Internet standards. The standards are open for public inspection and independent review, and encourage further development in the fields they cover.

I would suggest a single remedy appropriate to this problem: Microsoft must be forbidden to declare any portion of their product a trade secret, and as a result make available to public examination and independent re-implementation (for interoperability, educational and testing purposes only) technical specifications for all of their system APIs, file formats, media codecs, and any other method of system interaction not covered by a patent. The information could be, at little cost, be added to Microsoft's Developer Network, found at msdn.microsoft.com.

The benefits of this action far outweigh the apparent dangers. First, this action is not as invasive as it may seem, still allowing Microsoft to protect its' current patents or copyrights, and no limit is levied against Microsoft for patenting further technologies. Second, this action does not greatly affect Microsoft's competition: most or all of the information to be disclosed has either been disclosed on the Microsoft Developer's Network or has been repeatedly legally reverse-engineered. Third, this completely removes the artificial barrier raised against the developers of new technologies.

While it may be noted that Microsoft is a member of many standards bodies, too numerous to mention in a short letter, as a developer in the computing industry I have noted a distinct trend on the part of Microsoft to abandon widely-held standards in favor of their own protocols and methods, often of similar or identical name to the official standard, and generally a trade secret. While I shall withhold judgment of such actions, it must be noted that they lead to an inevitable destruction of competition. The current settlement does not cover such actions; I therefore submit my solution to be considered as a part of additional action to prevent this violation of anti-trust law from being repeated.

I believe this action is the best possible remedy applicable to Microsoft. As shown by the antitrust trial, Microsoft has historically used the trade secrets cocooned into the products it sells to stifle competition and hamper entrance of new technologies into the market. The most direct and least intrusive method to end such practices would, of course, to remove the possibility of the same circumstances arising again. To this end, I suggest that measures be added to the settlement that would forbid further development of technologies within Microsoft to be declared a trade secret, for they are clearly only used in a violation of the law.

-------

Whew. Let me cool off after rereading that- the whole Microsoft thing makes me really mad and I don't post that clearly for a while afterward.

That's better. Now, if you came here from my comment link, you might wonder why I don't talk just about protocols. Well, to me the whole think stinks just as bad, and if you're going to attack a small portion of the sh*t MS put out as "standards", then go ahead and throw the whole lot out- bathwater and baby (can't do too much harm, other options exist). Needless to say, I will be writing the W3C on the topic of standards very soon, with a similar point.

The floor is open to comments. And I will respond as quickly and often as possible- provided you put down your cookie and glass of punch to post in a reasonably friendly manner.