Hear Me Stumble over My Words

That there exists known abuses to the DMCA's anti-circumvention provision, that is hardly basis for arguing its ineffectiveness. All it tells me is that copyright owners are economical about who they enforce their copyrights against.

As for benefits of the DMCA, Jim Harper earlier wrote a beautiful blog on how digital music's creative destruction brought down Tower Records. Didn't this happen b/c of DRM under the legal framework of the DMCA.

To be frank, I see some of Tim Lee's arguments on DRM on this site, and it just floors me the extent to which he has to stretch even basic things to try and prove his point. Thats probably b/c he never reads market research or economics reports (and prefers to review 1 patent per week), and cooks the books to support his views.

A qualification, if provisions of the DMCA are unconstitutional, then of course they should be repealed. I don't see this happening with the anticircumvention provision though.

I raise this point because the justification to act on a law has to, well, justify its remedy right. So if societal costs of the DMCA's anticircumvention provision outweigh its benefits, then why choose a remedy like repeal when that might incur more costs and there are less drastic avenues to pursue. Repealing DMCA provisions because of unconstitutinality is consistent with this reasoning because any unlawful law needs to be repealed..

They're not flip sides of the coin Baumstark. For one, simply repealing a law can have more costs and ill-effects that the law caused in the first place. Also, you make the same analytical jump that Tim does- how do you go from a law being vague to wanting to repeal it. Doesn't vagueness suggest clarification as its remedy?

I'm not claiming the DMCA is a legislative work of art. I agree that its too vague. The point of diagreement between Tim and I is how to react to the DMCA. He wants to simply repeal it, which I view as careless and unconsidered reasoning. It would be more practical and beneficial to amend the DMCA.

The DMCA probably should have made more clear how the anti-circumvention exemption aligns with traditional fair use under the copyright act, and addressed some "tinkering" practices that may be commonplace and beneficial among hobbyists and those in the industry. I've written about this here (http://weblog.ipcentral.info/archives/2006/10/j...).

I'm curious, whats your view on what the DMCA should say.

The DMCA does read like a broad policy statement, which makes me suppose that courts have a lot of flexibility in their interpretation of it. The DMCA is not the only law to be vague on its face, and similar to other such laws, it will be clarified through the courts and further legislative changes.

Noel,

Unclear writing reflects either (a) clear thinking, poorly expressed, or (b) unclear thinking. The DMCA looks like unclear thinking.

If you think there's a clear idea underneath the DMCA's conceptual clutter, tell us what it is. What should the DMCA have said, in detail?

You are calling for clarity but this is far removed from your policy arguments to repeal the DMCA and eliminate software patents. It would take more serious evidence than lack of clarity to really support these positions.

Your statement about courts not providing opinions that would allow predictible legality under the DMCA is even more odd. Here, you're criticizing how courts do not engage in policy making. Courts, from what I've seen in DMCA cases, only take care of the issue at hand. They should be more extensive if you ask me, not as a form of judicial activism, but to use their role in interpreting (clarifying) the law to decrease ambiguities in it.

Lets see, you base your views on patents by criticizing their claim construction, you don't like the DMCA b/c of the way its written, you find a general fault with IP b/c courts write narrow opinions:):):)

OK, let me re-phrase the question: don't you think it important that the law--as interpreted by the courts--be clear and predictable? Isn't it a problem that no one has any clue what constitutes lawful reverse engineering under the DMCA?

Tim, what a law (or patent falling under the law) says on its face and how its interpreted are two different things. I've been trying to tell you this for months!!!

Noel, that is indeed a big part of the reason I dislike both the DMCA and software patents. Don't you think that it's important that the law be clear and unambiguous? That's an important element of the rule of law, is it not?

Your disagreement with the DMCA merely arises from the lack of clarity in the anti-circumvention exemption. Come to think of it, your disagreement with software patents, as seen in your patent of the week series, stems from your dislike of their broad-functional claim construction. The basis of your two main policy positions then, against the DMCA and software patents, seems to be that you don't like or understand what you read, rather than how these items benefit creators, consumers or innovation.