From my perspective, I’m not happy starting with “sincerity” as jumping-off point. If I (as a coder, or a company, or as a group of likeminded people) have to guess how my coding will be used by users and interpreted by courts (or the legislature, for that matter), there is a terrible chilling effect in play. Push this forward N years, and imagine open source projects starting. Apache was the outgrowth of a mailing list of syadmins trying to do things with the NCSA httpd that it couldn’t. If you introduce a legal analysis into the startup costs of that sort of effort, it simply won’t happen, or will happen only in places where such legal scrutiny doesn’t apply.

It could be that a slippery slope argument here is incorrect, but at the very least, starting out halfway down the hill doesn’t help matters.

From my perspective, I’m not happy starting with “sincerity” as jumping-off point. If I (as a coder, or a company, or as a group of likeminded people) have to guess how my coding will be used by users and interpreted by courts (or the legislature, for that matter), there is a terrible chilling effect in play. Push this forward N years, and imagine open source projects starting. Apache was the outgrowth of a mailing list of syadmins trying to do things with the NCSA httpd that it couldn’t. If you introduce a legal analysis into the startup costs of that sort of effort, it simply won’t happen, or will happen only in places where such legal scrutiny doesn’t apply.

It could be that a slippery slope argument here is incorrect, but at the very least, starting out halfway down the hill doesn’t help matters.

I don’t know precisely what the legal standard ought to be–I’m not entirely comfortable with the “sincerity” formulation Lichtman suggests, although I think it’s a good starting point for discussion. But the difficulty of fashioning the ideal rule is precisely the reason Congress should have allowed the courts to wrestle with the problem without getting involved themselves. Because the courts deal only with particular cases and controversies and are insulated from special interest pressures, they’re much less likely to come up with sweeping, over-broad rules like the DMCA’s anti-circumvention rule.

Worse, the concept prevents anyone from trying to make a “one stop shopping” website, where collections of materials are directly available.

Also there is no comparison of what’s involved in choosing a website. If site A offers the bible but also posts ads, am I sincere in posting the bible without ads? If site A posts the bible without ads, am I sincere in posting it WITH ads to try to make money?

The “Sincerity” test is terribly flawed, and all by itself is probably a first amendment violation.

• Precision Blogger http://precision-blogging.blogspot.com

As a legal matter, this test sounds terribly colorable to me.

For instance, GMail is an invitation to piracy that doesn’t solve a problem that hasn’t already been solved. For that matter, HTTP as a protocol doesn’t take steps to discourage piracy, and FTP could have just as well been used.

It seems like an argument that each new protocol or application need “discourage more” than the last, or else be judged by application of its users (anyone remember FSP?), in order to be considered “legitimate”. Seriously: take this argument back to 1990: Gopher didn’t take affirmative steps to discourage piracy.

Freedom to tinker, indeed.

As a legal matter, this test sounds terribly colorable to me.

For instance, GMail is an invitation to piracy that doesn’t solve a problem that hasn’t already been solved. For that matter, HTTP as a protocol doesn’t take steps to discourage piracy, and FTP could have just as well been used.

It seems like an argument that each new protocol or application need “discourage more” than the last, or else be judged by application of its users (anyone remember FSP?), in order to be considered “legitimate”. Seriously: take this argument back to 1990: Gopher didn’t take affirmative steps to discourage piracy.

Freedom to tinker, indeed.

However, on the legal point, I agree with the Supreme Court in Sony when they cite “a copyright holder’s legitimate demand for effective — not merely symbolic — protection of the statutory monopoly.” It seems to me that Napster and Grokster undermined that statutory monopoly, and that they failed to demonstrate a “substantial non-infringing use” that would give us reason to overlook that problem. Hence, the courts, in my view, were justified in shutting them down.

In contrast, BitTorrent has demonstrated a good faith effort to police piracy on its network, and it has a more plausible claim to “substantial non-infringing uses.” So I don’t think peer-to-peer technology, as such, is illegal–just peer-to-peer technology that seems designed for the explicit purpose of evading copyright law.