Letter to Editor: Response to Florian Mueller's Release re: "Anti-IP" [LWN.net]

Request for clarification

Posted Aug 25, 2005 19:30 UTC (Thu) by FlorianMueller (subscriber, #32048) [Link]

QUOTE: I see nothing in Mr. Schultz's letter saying, or even intimating, that it is not a copyright issue (``not a question of copyright'', in your words). A careful reading will reveal that he is claiming the exact opposite.

In his letter, he claimed: First, the Blizzard v. BNETD case is anything but "against copyright."

Now you don't deny that it's a copyright case. The entire debate is about copyright law (Copyright Act, DMCA, and EULAs and TOUs that are based on one party owning the copyright).

That leaves us with one last question: Did the EFF in this case, part of which is just about copyright and another part about a right that is based on copyright, act "against copyright" as I said in my statement? A reasonable analysis can come to no other conclusion:

- Obviously a legal proceeding is not a political debate on legislation. In a legal proceeding, you can only operate with the law as it exists, not demand a different law altogether, but still you pursue a goal which is for or against someone/something.
- In the defense of its clients, the EFF said that the Copyright Act allows for something (interoperability), and Blizzard said it doesn't.
- In the defense of its clients, the EFF accused Blizzard of "copyright misuse" (because of its EULAs and TOUs), and Blizzard said its licensing terms were no such misuse, but that defining such terms was simply in their reasonable right as a copyright holder.
- The Blizzard claim was largely based on the fact that bnetd can be, and has indeed been, used to circumvent copyright protection, and the courts have agreed.

It's pretty clear that the EFF wanted to prevent a copyright owner (Blizzard) from, by way of EULAs and TOUs, reserving key rights that, unlike the EFF, the courts deemed very reasonable. The EFF wanted to use a carve-out in copyright law to justify the actions of its clients. It's also clear that the EFF defended a technology that the courts deemed to enable the breach of copyright law, and the courts even decided that such breach has occurred.

There could be an even clearer anti-copyright case if you defend a counterfeiter in court, but this here comes dangerously close to that (too close for an organization that should be concerned over its reputation).

Request for clarification

Posted Aug 25, 2005 20:40 UTC (Thu) by GreyWizard (subscriber, #1026) [Link]

Claiming that a person accused of murder is not guilty does not imply a conflict with homocide laws even when a court finds otherwise. Similarly claiming that the behavior of the bnetd team does not violate existing copyright law is not a position against copyright even if that claim is rejected by a court. Had the opposite decision come down would you stand by while someone declared that Blizzard acted against copyright by pursuing the case? Surely not. Whether the EFF was wrong to defend the bnetd team is a fair question for debate but to declare their actions to be against copyright is biased rhetoric.

Request for clarification - evil intent

Posted Aug 26, 2005 5:53 UTC (Fri) by lacostej (subscriber, #2760) [Link]

" based on the fact that bnetd can be, and has indeed been, used to circumvent copyright protection, and the courts have agreed."

The question is whether this potential use is a primary intent or a consequence. Most people on the defense camp agree this is a consequence of the implementation. Should we prevent the legality of using this because of the side effect? E.g. if there was a law to ban killing, where do we draw the line? Should we ban guns and knives? Guns are designed to kill. It became a sport (or a training exercise) later on. Knives *can* kill. They have also many other fine usages. I believe that in this case, the line has not been drawn correctly.

Final clarification from my end on this one here

Posted Aug 26, 2005 7:25 UTC (Fri) by FlorianMueller (subscriber, #32048) [Link]

There's a difference between a defense attorney (whose job it is to defend someone) and a non-governmental organization that provides services (potentially also money, but even if not, the services themselves have a monetary value).

The attorney can take on any case and use just any legally permissible argument. The NGO, however, must carefully pick the cases that it chooses to provide (directly or indirectly) funding to, and must accept that the points it makes in the case can be held against the NGO politically. That fact certainly puts the NGO at a potential disadvantage, which is why someone who has the money should always prefer the services of a regular attorney.

In my opinion, the EFF should have been realistic that IPRs are held in high regard by politicians, and that one can only work effectively against the counterproductive protuberances of the IPR regime if wholeheartedly supporting the basic notion that those who write software (which I think the EFF itself doesn't do) deserve IP protection and a major (not just an adequate) opportunity to commercialize their creations. Some may argue that the U.S. Constitution doesn't contain that notion, but this is just part of promoting the progress of science and the useful arts in my opinion, and even the founding father hadn't viewed it that way, it's the prevailing view and interpretation today.

My opinion is that all those IPRs upon which one can, realistically speaking, only infringe by acts of will (copying code from someone) or gross negligence (not checking on the legality of code that is contributed), are acceptable and should be as far-reaching as possible, while those that can restrict the freedom of everyone (even the most honest developer who never steals anything) to innovate must be fought against.

Theoretically, one can infringe upon copyright by writing a long piece of code that someone else also happened to write, but it's easier to win the lottery for a year in a row. Also, one might be sloppy in incorporating third-party code into his own code without a license, nor not properly define the licensing terms from, and warranties and representations of, a contributor, but that is gross negligence.

Copyright stands on a very high moral ground. An NGO that wants to stand on the same high moral ground must not contribute resources to a fight that would in the end have caused serious harm to the legitimate interests of a copyright holder in commercially exploiting his creations.

Sure, some say, and even I agree, that the respective damage was not the primary objective of bnetd as the EFF fought for interoperability and viewed the court-validated negative effect of bnetd on copyright protection as "collateral damage" that was justified by a higher principle. However, "collateral damage" logic is dangerous as we all know. I believe it's disreputable to consider a major negative effect on a company's business model, for so-called "hack value" as the bnetd developers call it, "collateral damage" that has to be taken into account. There's absolutely no reasonable proportion between benefit and the collateral damage from the perspective of someone like me (gamer, games marketeer, and game developer).

The other distasteful proportion is that the EFF sided with hackers who wrote a fairly small and simple piece of code, and fought against Blizzard, which holds intellectual property that is literally hundreds of times more expensive to develop and zillions of times more commercially valuable. I'm not just speaking of the IP that Blizzard owns as a whole but specifically of that which played a role in this case. On the one hand, you have a company that has made huge investments and developed some of the most popular games in the history of industry, and on the other hand, a group of individuals who have done something that is not completely trivial either, but trivial in comparison to the intellectual achievements that Blizzard wanted to protect.

Basically, bnetd piggybacked on that much greater intellectual property and could have caused severe damage to it, like an insect that sucks blood out of a larger body and infects it with a potentially deadly virus.

It's still my position that it's an unlawful attitude to support bnetd against Blizzard. Now I will also stop commenting on this HTML page.

Finally clarified

Posted Aug 26, 2005 15:17 UTC (Fri) by man_ls (subscriber, #15091) [Link]

Your position is quite clear now. Even as your arguments kept growing heads like a hydra, they had the paradoxical effect of letting us see through all of it. Basically, it is to side with the stronger side, without regard for reason or fairness; a deep and complex instance of argumentum ad crumenam, i.e. letting money decide. Your whole message could also be applied to a hypothetical "Adobe vs KPDF", "Macromedia vs GNUFlash" or even "Microsoft vs Samba"; the distinctions you drew earlier (game or office setting) are of no substance now.

In this context, the EFF was obviously doing the right thing: defending the weak party against the powerful one. Just like when Dimitri Sklyarov was jailed for (legally in his home country) removing Adobe's PDF protection; or when Jon Johanssen was judged for (legally in his country too) letting people watch DVDs on their computers. Huge amounts of money and far-fetching business models were threatened, far more than in this case; it is a worthy activity to defend those people.

And, by the way, "sloppy" incorporation of code is not the only way to violate copyrights inadvertently; it was mentioned as an example. You chose to leave out the issue of kernel modules, which Moglen himself (primary enforcer of the GPL for 20 years) apparently cannot unravel on his own; and there is also fair use, about which the US copyright office says:

The distinction between fair use and infringement may be unclear and not easily defined.

If you have never copied code from a book or a web page you are safe. And then, there are also those sudden changes of heart where a court forbids what was previously clearly allowed, as seen in the bnetd case.

Request for clarification

Posted Sep 1, 2005 22:02 UTC (Thu) by Differance (guest, #18916) [Link]

> The EFF wanted to use a carve-out in copyright law to justify
> the actions of its clients.

Bunk. The exclusive rights granted under copyright are carve-outs from the other more essential rights and principles it also articulates. The several enumerated exclusive rights under copyright are "subject to" the other portions of the statute upon which the EFF is relying. Read the law.

> It's also clear that the EFF defended a technology that the
> courts deemed to enable the breach of copyright law, and
> the courts even decided that such breach has occurred.
>
> There could be an even clearer anti-copyright case if you
> defend a counterfeiter in court, but this here comes
> dangerously close to that (too close for an organization
> that should be concerned over its reputation).

Exactly as one who insists on using the term "intellectual property rights" would be.

You'd be nowhere in the software patents fight if at the critical moment FFII and others hadn't taken up the fundamental political organizing principle of targeting contradictions in the position of the other side and blowing them wide open -- rather than attempting to finagle a position out of legalistic and legislative dickering and negotiation. You built the nosoftwarepatents site out of that impetus, and now you imagine that means your analysis from the standpoint of "reputation" should gain the weight for others that it holds for you.

Leave EFF alone. Be glad they aren't deluded by your positioning.

Request for clarification

Posted Aug 26, 2005 19:53 UTC (Fri) by Ross (subscriber, #4065) [Link]

But it isn't actually a copyright issue, but a DMCA issue. If he wants to consider the DMCA part of copyright that is fine, but his other statements were about things which are not part of the DMCA (and in some cases not copyright either).

The DMCA specifically says that it isn't intended to interfere with fair use rights under copyright law. That is why the fair use carve-out under copyright law can also be used under the DMCA.