Request for clarification - evil intent [LWN.net]

Request for clarification - evil intent

Posted Aug 26, 2005 5:53 UTC (Fri) by lacostej (subscriber, #2760)
In reply to: Request for clarification by FlorianMueller
Parent article: Letter to Editor: Response to Florian Mueller's Release re: "Anti-IP"

" 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.

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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.