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.

No. Vagueness suggests the law was poorly-thought out, passed on the knee-jerk and/or created with special interests (not the general public) in mind. All good indicators it should be scrapped and, if necessary, the process begun anew.

Clarification is well and good, but proceeds under the assumption that the intention (spirit) of the law is correct to begin with. In light of known abuses of the DMCA’s anti-circumvention clause and no demonstrated benefit, its entire purpose for existence needs to be re-evaluated.

No. Vagueness suggests the law was poorly-thought out, passed on the knee-jerk and/or created with special interests (not the general public) in mind. All good indicators it should be scrapped and, if necessary, the process begun anew.

Clarification is well and good, but proceeds under the assumption that the intention (spirit) of the law is correct to begin with. In light of known abuses of the DMCA’s anti-circumvention clause and no demonstrated benefit, its entire purpose for existence needs to be re-evaluated.

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DMCA provisions because of unconstitutinality is consistent with this reasoning because any unlawful law needs to be repealed..

So it’s okay to be careless and unconsidering when creating a law (as certainly happened with the DMCA), but not okay to take a vague law and repeal it?

So it’s okay to be careless and unconsidering when creating a law (as certainly happened with the DMCA), but not okay to take a vague law and repeal it?

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/just_say_why_yo.html).

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.

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?

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:):):)