Senator wants limits on copy protection (News.com) [LWN.net]

Senator wants limits on copy protection (News.com)

Posted Jun 5, 2003 21:47 UTC (Thu) by rlhamil (guest, #6472) [Link]

I think the real problem of which the DMCA is just one symptom is that
behavior peripheral to the offense principally meant to be interdicted is
also outlawed. Some examples:

* banning circumvention of copy protection when the real problem is
with copyright violation (or perhaps with violation of an
anti-reverse-engineering clause of a license)

* Maryland restricts private ownership of body armor on the theory that
criminals can use (and have used) it for an extra advantage in case
of a confrontation with police or with someone attempting to defend
themself

* Virginia (IIRC; and others) bans radar detectors; some states ban mobile
use of scanners, since criminals could use them to evade capture or
locate exploitable situations. Likewise, I think there's now a federal
law forbidding scanners that can receive certain frequencies commonly
used by cell phones. This group of laws really frosts me - the
electromagnetic spectrum and the potential to receive electromagnetic
signals are facts of natural law that it seems absurd to restrict in
and of themselves, the real problem being what is done with the
information obtained. For example, I seem to recall a more sensible
law that simply forbid recording or redistribution of certain signals
(military communications); dealing with reception of signals like
one deals with letters (where the sender holds the copyright but the
intended recipient owns the physical copy, or with signals, may have
a right to retain a copy if the sender is aware of that) could address
privacy or abuse-of-information issues without resort to restrictions
on reception.

In all those examples and doubtless many more, the real problem is
some other criminal or civil violation, yet all the examples restrict
activities without regard to whether they are occuring in conjunction
with the central offense. Even a radar detector (which
seems the most obviously intended to evade the law) can simply be
one more tool to help a driver stay alert and situationally aware; cases
for legitimate use in the rest of those examples should be even more
obvious.

It seems to me the real answer in all those cases is that such peripheral
matters should not be offenses in themselves, but should be aggravating
factors if the central offense is found to have occurred. If someone
defeats copy protection and then redistributes the material, it's harder
to argue that the redistribution was accidental. Indeed, in most of
those cases, the peripheral elements may be suggestive of premeditation
or even conspiracy, both of which can already make the central offense
more serious and the possible sentence more severe.

Now I'm not a lawyer, and I'm sure I'm missing some matters of criminal
vs civil law, and perhaps quite a bit more. But the principle of
focusing on the central offense and not separately restricting freedom
to engage in potentially harmless activities seems quite reasonable to me,
and I'd like to think there should be some way of moving back to such
basic concerns and away from unduly restrictive laws that merely cater
to special interests or to the need to be seen to be doing something
proactive come re-election time, regardless of the consequences.