Another fun DMCA case [LWN.net]

Another fun DMCA case

Posted Jul 14, 2005 14:59 UTC (Thu) by pyellman (guest, #4997)
In reply to: Another fun DMCA case by rev
Parent article: Another fun DMCA case

By repeatedly drawing attention to the term "effective" without addressing the common knowledge that compliance with robots.txt is purely voluntary and actually requires proactive effort, it almost seems that ksmathers is arguing for an interpretion of that word to mean "Operative; in effect", as in "your honor we were, in effect, using robots.txt as a copy protection mechanism" rather than what I think most people assume that term to mean, "producing a desired effect" or "efficacious". "We believe it's a copy protection mechanism, ergo it is"!

If such an interpretation were upheld, it would indeed be a significant "paradigm shift", as winning a DMCA case would be as easy as bringing one. Others have pointed out here on LWN that such an interpretation would lead to such things as "psychic fingerprinting" as a method of copy protection. I can see it: "Now, your honor, through the magic of the DMCA, we will turn this screwdriver into a hammer before your very eyes simply by calling it a hammer".

I doubt that ksmathers is alone in his interpretation, and I almost wish it were true, as the resulting total chaos would virtually ensure that the DMCA would be revisited by legislators.

Peter Yellman

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Another fun DMCA case

Posted Jul 14, 2005 18:51 UTC (Thu) by ksmathers (guest, #2353) [Link] (2 responses)

Sorry, I really don't get your argument. Yes, I'm drawing attention to the term 'effective'. I disagree that compliance with robots.txt requires proactive effort. Let me rephrase that: I agree that not complying with robots.txt need not require proactive effort, but there are many uses of robots.txt which are compliant, and which are already encoded in common technologies for accessing web content (the 'wget' tool for example), and therefor require no effort on the part of the user in order to comply with robots.txt.

Whether it is voluntary to use robots.txt or not really doesn't make any difference. Almost all copy prevention technologies are voluntary. There is no law requiring VCRs to interpret brightness signals differently than television sets, but this difference is still the basis for Macrovision's copy prevention technology.

Another fun DMCA case

Posted Jul 14, 2005 20:21 UTC (Thu) by pyellman (guest, #4997) [Link] (1 responses)

You wrote:

> Regarding making an affirmative effort, I've already written the same thing myself elsewhere in this discussion. You seem to think that just because the use of robots.txt is optional that this means that no one could show that you had made a special effort to avoid the use of robots.txt. That simply isn't true.

and

> I disagree that compliance with robots.txt requires proactive effort.

and

>Whether it is voluntary to use robots.txt or not really doesn't make any difference. Almost all copy prevention technologies are voluntary. There is no law requiring VCRs to interpret brightness signals differently than television sets, but this difference is still the basis for Macrovision's copy prevention technology.

First of all, in regard to that last statement: Huh? In the first place, Macrovision apparently enjoys the unique pleasure of having a clause inserted into the DMCA just for its own benefit (http://www.unmediated.org/archives/2005/06/macrovision_in...). Second, are you really comparing the difficulty level of not implementing robots.txt with designing and building a new VCR?

You repeatedly suggest that the difficulty of avoiding a copy protection "scheme" (I'm not even going to use mechanism anymore) is irrelevant, but the rest of us are saying the opposite -- that that is the only rational interpretation of the meaning "effective". Get it? No "psychic fingerprinting".

Finally, if if what you say were true, various senators and the MPAA would not have found it necessary to introduce the Broadcast Flag amendment (which was struck down as an FCC regulation), as they (the MPAA) would have had all the authority they needed under the DMCA.

Peter Yellman

Another fun DMCA case

Posted Jul 14, 2005 22:02 UTC (Thu) by ksmathers (guest, #2353) [Link]

Well, I wish you good luck should you attempt a defense in the future with that approach.