OK, I know it's every bit as juvenille as the "first post" weenies, but I've taken to making sport of getting first mod down when I have mod points. Here's how it works:

* Get mod points
* Catch a new story before the posts come in
* Mod down as many "first post" posts as you can before a legitimate post on the topic comes in.

So far, my record is blasting down 3 "first post"s before the on-topic discussion starts.

I was relieved to hear today that S.3021, the Family Entertainment and Copyright Act of 2004, passed in place of HR.2391. Where HR.2391 read like a protectionist manifesto for the copyright cartel, S.3021 was an excellent example of how copyright law can be ammended to target legitimate offenders without eroding the fair use rights of consumers or wasting public resources on the torts of corporate content owners.

Though I remain concerned that the entertainment lobby continues to attempt to ram their draconian agenda into the law, it is refreshing to see that the Senate is willing to check them and ensure that the interest of citizens and the Constitutional principles of intellectual property law are preserved.

I am writing today in regards to S. 2560, the Inducing Infringement of Copyrights Act (IICA) of 2004. This piece of legislation is one of the most dangerously misguided and malicious pieces of technology legislation to rear its ugly head in the last decade, and it is vital that it be stopped from becoming law. S. 2560 sets an indistinct standard for determining the role of technology in copyright infringement, and stands to (1) criminalize broad classes of technology having significant non-infringing purposes and to (2) stifle innovation by chilling investment and research in technologies that might be used by unscrupulous individuals for infringement.

As a technologist and copyright holder myself, I understand and share the concerns over infringement that our massively connected, high-speed culture present. In the near future, we will face many more fascinating challenges in dealing with the security and distribution of digital content. It is unacceptable, however, that in moving too hastily we sacrifice nascent and as yet unconceived technologies to protect the business models of the content industry. S. 2560's assignment of vicarious liability to hardware and software creators who develop new technologies is a long step in the wrong direction.

Mitch Bainwol, writing for the Recording Industry Association of America (RIAA), recently sent to your office an emotional appeal filled with vague appeals to "common sense" and unfounded assertions about the effects of Peer-to-Peer (P2P) technologies on RIAA-affiliate sales. Bainwol's analogy that sharing/downloading their music through unauthorized channels is equivalent to pocketing a CD and leaving a store without paying is apt, and perhaps reveals more than he intended: We do not arrest or sue the clothier who made the jacket with pockets, we deal with the criminal who put the merchandise in them.

I urge you to dismiss Bainwol's arguments as the hype that they are (if there's one thing his industry does well it is hype) and to stand up to your Senatorial peers who have signed on to this horrid piece of corporate-sponsored legislation. Please oppose S. 2560.

To the Honorable Robert Wexler:

I am writing today to thank you for pressuring Palm Beach County to implement printers for the voting machines, and to congratulate your success in this effort.

There is nothing more precious to our way of life than fair, honest, and open elections, and relying on proprietary voting systems without methods for auditing and accountability is simply not acceptable. As a computer scientist, I dismayed at the headlong rush to purchase touch screen equipment with nothing but the assurances of the vendors that they were reliable, assurances that have been belied already by experiences in other states with compromised networks, lack of adequate encryption, and other major security flaws. The addition of a paper trail to these systems will provide a trustworthy fallback in the event of questionable results, provide for recounts stipulated by Florida's election law, and do much to alleviate the suspicion with which many people rightly view this technology.

I would recommend going a step further, and requiring that all election systems operate on open-source software that can be examined and validated by the public. Given that the device hardware is the actual commodity of value and that robust voting software could be written by a CS graduate student, there is little merit in vendor claims of trade secret or other arguments against responsible peer review of the systems.

Again, thank you for your diligent work in this area. I will go to the polls this November with increased confidence that my vote will be correctly counted.

~~~~

Editorial note to /. readers:

To those of you who follow my correspondence campaign, don't fret. The next letter in the works is a FUD-dispersing missive on the recent SCO Congressional diatribe...

Does United States intellectual property law, as currently enacted and practiced, fulfill the Constitutional directive "to promote the Progress of Science and useful Arts" or is it leading progressively to the concentration of control of creative and scientific works in a handful of corporate powerhouses? That is the question I would like to ponder in this thread. Comments are enabled, so please contribute!

I am writing to urge your opposition to the "Enhancing Federal Obscenity Reporting and Copyright Enforcement (EnFORCE) Act of 2003". Mr. Hatch argues that "market realities" dictate a need for antitrust exemptions for the music and movie industries. As far as I can tell, the only market reality here is the fertile market that Mr. Hatch's campaigns have become for these industries, which have a history of insular and anticompetitive practices including construction of vertical monopolies and (very recently) price fixing in collusion with large retailers. Granting them exemption from Federal antitrust law would be the height of folly, and should not be included in any copyright reform act.

I recently received from Bill Nelson, one of my U.S. Senators, a response to a letter I had written him regarding copyright issues and, particularly, the use of copy-protection technology on audio CDs. This letter contained an interesting turn of phrase that set me to thinking hard about the challenges we face in dealing with politicians over issues of copyright, and how fair use fits in a world of technological insurgency and counterinsurgency in the access to and protection of copyrighted works.

Background

I was recently burned by a copy-protected CD (I won't say which because I don't want to declare open season on my musical tastes) that failed to play on my notebook CDRW drive where I listen to most of my music. Failing to get any satisfaction from the retailer, who of course would not take returns on open product (ironically because I could copy and return it), I decided to complain loudly to anyone who had an interest in ensuring fair practice between business and consumers. This list of communicants included:

• The Better Business Bureau
• The Federal Trade Commission
• My State Attorney General
• My U.S. Representative
• My U.S. Senators

Note that these last two were included, not because I expected them to drop by the local Best Buy and start kicking ass and taking names, but as I routinely correspond with them on copyright and technology related issues, I was able to insert my story in my next letter to them as anecdotal evidence of the kind of harm consumers could face from mandated DRM/copy-protection technologies.

Copy Protection or Copyright Protection?

Getting back to the point of this missive, the line from the Senatorial reply that inspired my contemplation was, with my emphasis added:

Thank you for contacting me regarding copyright protection of digital media.

Here is the crux of the matter: Copy protection (the term I used) is a technological measure to inhibit certain classes of use by consumers. Copyright protection (my Senator's term) is a matter of law, implemented by law enforcement to protect the rights of copyright holders. Conflating these two is dangerous because machines cannot consider the subtleties of the law, particular of fair use exemptions, and cannot be trusted with authority to protect copyrights, only to prevent copying.

How can we make this distinction clear to the policy makers who will impact the very future of technological, even intellectual, development of our culture? Their business being the law, they view the problem as one of making users obey the law via electronic proxies. The only problem is that machines do not easily understand exceptions, particular exceptions as subtle as those posed by copyright law. They do not know when copyrights expire, or when a particular copy is protected by fair use. How can we disabuse our representatives of the notion that machines can be made as cunning as legislators? How can we communicate that there is no technological mandate that will not have grave implications for fair use?

Or am I just being short-sighted in my view of the technlogy? As a software engineer, I am well aware of how biases and blind spots develop over time. Neglecting theoretical uncomputables and intractabilities, is it possible to encode the subtlety of the copyright law in software without binding the software to some global permissions database with the attendant implications for privacy?

To their credit, both my Senators and Representative claim to prefer market-driven solutions (although Rep. Wexler co-signed the Berman Peer-to-Peer Privacy Prevention Act and is now a founding member of the Caucus on Intellectual Property and Piracy Prevention, a congressional lobbying arm of the copyright industry if there ever was one), but it is clear from recent legislative history and a survey of pending bills that there will almost certainly be some form of governmental interference soon along the boundary between technology and copyright. It seems that now the only decision will be whether this action is taken to protect consumers fair-use rights or to strengthen the copyright cartel's stranglehold over electronic media and the technology that distributes and reproduces it.

Using -1 Overrated against +5 Funny is a waste of points. Someone else will come along and moderate it right back up!

I am writing today regarding last Thursday's introduction of H.R. 2517, the Piracy Deterrence and Education Act. While I find it refreshing that Congress would assign responsibility for monitoring of criminal copyright infringement to law enforcement where it belongs, rather than delegate it to corporate vigilantes (as with DMCA, P2PPPA), I am disturbed by some of the bill's text.

The conflation of copyright infringement with theft (H.R. 2517 repeatedly uses terms like "steal" and "theft") is disingenuous and dangerous. As you know, these are different crimes covered by different statutes, and it would be negligent to let this bill proceed as written. I request that you do whatever is within your power to ensure that the terms of the bill are clarified, and that any possibility of confusion of copyright infringement with more serious property crimes is removed.

The following text was sent to my Senators and, reworded in the second person, to Senator Hatch himself...

I am writing to express my dismay and outrage at comments made by Senator Orin Hatch during the Tuesday, June 17 2003 Judiciary Committee hearing on copyright issues. That a member of the Senate could advocate destruction of personal computers by copyright owners shows a shameful lack of respect for the law. The notion that due process can be circumvented in the interest of protecting intellectual property is absurd in the extreme. Are behaviors that would be considered terrorism under our statutes suddenly acceptable in the cause of defending the latest pop song or Hollywood movie?

I urge you to reprimand Senator Hatch for his words and urge him to start working now toward reasonable solutions to the current copyright/technology conflicts. Inflammatory rhetoric has no place in a reasoned debate, and if he intended these comments to be more than rhetoric, then he has no place in Government. Perhaps he would do better as a copyright paramilitary for the Recording Industry Association of America. I hear they're hiring.

It was with mixed feelings that I learned of the formation of the Congressional
Caucus on Intellectual Property Promotion and Piracy Prevention. While I
acknowledge that the current practice of casual "sharing" of copyrighted works
warrants action to preserve the rights of copyright holders, the initial
composition of the group, in fact the very name, suggests that it will promote
the interests of large corporate content owners while creating more
restrictions on technology, entrepreneurs and consumers. I apologize in advance
for the somewhat accusatory tone this letter takes and invite you to explain
why my concerns are unfounded, if indeed they are.

I have so far heard only four names associated with the caucus: Yours, Mary
Bono, Adam Smith, and Tom Feeney. I am well aware of your signature on and
defense of the Peer to Peer Privacy Prevention Act, Mary Bono's promotion of
the Sonny Bono Copyright Term Extension Act, and Representative Smith's letter
from last Fall assailing the GNU General Public License used by the Linux
operating system (a chief competitor to his large contributor Microsoft
Corporation) as a threat to "innovation and security". While Representative
Feeney's record appears to be sparse to nonexistent on copyright issues, I know
that second to the Club for Growth, his largest campaign contributor for the
2002 election was the Walt Disney Company. All these facts give me reason for
serious concern about the interests represented by the caucus. Is it to be an
unbiased panel for dealing with public policy issues raised by the collision of
technology and copyright, or a lobbying extension of the copyright industry?
When three-quarters of its initial membership have already demonstrated bias in
favor of that industry, and the third is bankrolled by one its largest
corporations, where is the voice of the consumer or of technology and content
entrepreneurs who don't already have billions in the bank?

Copyrights and patents are not property rights, but are suggested (not
mandated) by the Constitution as limited monopolies on creative work in
exchange for an ultimate payback to the public domain. This distinction was
made wisely by the founding fathers, and the arts and technology have advanced
unimpeded in many ways because of these limits on "intellectual property".
Imagine the penalty to our culture if no one could quote Dante or Shakespeare
without paying a royalty to their descendants. As ridiculous as it sounds,
copyright industry lobbyists have effectively used their paranoid view of
technology to put us well along the slippery slope at this point. The Digital
Millennium Copyright Act (DMCA) makes it possible for copyright owners to lock
up material behind encryption and prosecute the act of accessing it in an
"unapproved" fashion, even when that right is guaranteed in the US Code (fair
use) and case law that extends the fair use doctrine to include rights to time-
and space-shift. For good measure they throw in the Sonny Bono Copyright
Extension Act to ensure that the material remains, in effect, perpetually
protected.

I have never advocated any reduction in the rights of copyright holders. I hold
numerous copyrights myself, and in fact work in an industry (software)
dependent of IP protections. What I take issue with is the current trends of
legislation to criminalize technologies, rather than behavior, and to protect
the interests of one industry against the that of the public domain and of the
unimpeded advancement of science and invention.

So that I know exactly where you stand, and whether my energy spent expressing
concerns on this matter is worthwhile, I would like you to answer the following
questions:

1. Do you think the present copyright terms is too short, too long, or just
right?
2. Is present policy the best we can do to "advance the progress of the arts
and sciences" as the Constitution say? If not, how should the rules be changed
to do better?
3. What is the maximum amount of time "limited terms" can last when it comes to
patents and copyrights before terms are essentially permanent and the
Constitution is violated?
4. Do you believe it is appropriate for Congress to ban technologies that have
substantial non-infringing uses because those same technologies can be used for
copyright infringement?

I look forward to hearing your answers to these questions.

Dear Recording Industry Association of America:

As an Internet user, software engineer, and musician, I have followed the recent controversies over file-sharing and piracy issues and the RIAA's role in them with great interest. Until now, I have grudgingly respected your right to lobby the government and the courts for protection in the face of clearly illegal infringement of your protected works, though I have frequently disagreed with your tactics, which often amount to collective punishment of all consumers for the actions of the criminals.

I tolerated, because I had little choice, when you successfully passed the Audio Home Recording Act of 1992, placing a tax on blank DATs that I use to master my own music to compensate for your losses. I railed against the DMCA, which puts chilling restrictions on the advance of academia and technology in order to bolster your outdated business models. I began to question whether it was worth giving you my money when I bought my first copy-protected CD. I have never used a peer-to-peer network nor downloaded a copyrighted song except from the publishers themselves because I respect the right of creative people to be compensated for and to control reproduction their work. I've learned over time that this respect is not returned however, because I now have a disc that I can't listen to in my notebook computer since you have lumped me collectively with the rip-burn-share crowd.

Today, however, I am writing to inform you that your barratry against the computer science student Jesse Jordan of Rensselaer Polytechnic Institute, and final offer to "settle" for his $12,000 life savings (barely enough to cater your average record release party I imagine) officially goes too far. This student created a general-purpose tool for searching his campus network, and in your zeal to "send a message" to college students, you put him in position of defending *his* rights to create against your bottomless legal budget, all at a time when he was in no position to sacrifice his academic career to spend his days in court.

You have succeeded in sending a message to me. That message is that your organization is a litigious monster that does not deserve my support. I will not contribute to a group that sets itself against every technology it cannot control (I'm sure you would have lobbied to ban the Internet itself if you'd seen it coming) just because that technology might be used by criminals to infringe your copyrights, and for that reason I am declaring my intention today never to buy another recording released by an RIAA member label. This action on my part is a drop in the ocean to be sure, but I am far from alone in my disdain for your abuse of the courts and your customers, and the flood is gathering.

The next time you present Congress with your specious claims of losses due to piracy, I hope you will bear in mind that they will also have heard from me, and people like me, that another reason your sales are down is the unbelievable level of abuse and disrespect to which you subject your honest customers.

Sincerely Yours,
A.L. Borchers

Every +1 Funny mod point doubles the probability that someone will be compelled to reply with a lengthy and humorless response to your off-the-cuff remark.