Comments on: When “Reasonable” Isn’t

By: Noel Le

Noel Le — Sat, 24 Mar 2007 23:53:37 +0000

Doug, you rightfully call out that Tim's main criticism of the DMCA is that it exist in the first place, thus he does not place that much importance on actually looking carefully into the cases.

Granted, I believe the anticircumvention provision and its exception should be clarified, but right now it appears that will only happen through the courts. Based on Tim's perspective, he would oppose improving the DMCA, since he doesn't think such cases should be brought in the first place.

By: Noel Le

Noel Le — Sat, 24 Mar 2007 22:53:37 +0000

Doug, you rightfully call out that Tim's main criticism of the DMCA is that it exist in the first place, thus he does not place that much importance on actually looking carefully into the cases.

Granted, I believe the anticircumvention provision and its exception should be clarified, but right now it appears that will only happen through the courts. Based on Tim's perspective, he would oppose improving the DMCA, since he doesn't think such cases should be brought in the first place.

By: Doug Lay

Doug Lay — Sat, 24 Mar 2007 13:19:33 +0000

Noel, your nagging is quite tiresome and irrelevant. Cases like the Lexmark case may have rejected an expansive reading of the DMCA anti-circumvention clause in the end, but the more salient point – which Tim has been consistent about in everything I’ve read by him – is that these cases should never have been brought at all. They chill competition and tilt the balance of market power away from disruptive upstarts and toward incumbents.

The DMCA anti-circumvention provision is protectionist, anti-consumer, and anti-innovation (really, the second two claims flow almost inexorably from the first). It should be repealed as soon as possible.

By: Doug Lay

Doug Lay — Sat, 24 Mar 2007 12:19:33 +0000

The DMCA anti-circumvention provision is protectionist, anti-consumer, and anti-innovation (really, the second two claims flow almost inexorably from the first). It should be repealed as soon as possible.

By: Noel Le

Noel Le — Fri, 23 Mar 2007 23:47:03 +0000

Well, you state the issue well here, but in your DMCA paper did not follow through with illustrating it in the case analysis. You did not mention several DMCA cases where courts have limited application of the anti-circumvention provision. You reviewed only a limited set of DMCA cases as if they were the sole interpretation of 1201- a puzzling maneuver since there are few DMCA 1201 cases to being with. The implication on your analysis was that your argument did not fully present how courts have not always weighed down negatively on reverse engineering activity; a concept that contradicts your conclusion.

By: Noel Le

Noel Le — Fri, 23 Mar 2007 22:47:03 +0000

By: Tim Lee

Tim Lee — Fri, 23 Mar 2007 22:28:19 +0000

Noel, I'm not "wavering," I'm making two distinct, and mutually reinforcing points.

The first point is that increasing the ambiguity of the law is a bad thing regardless of whether it's done by the courts or by Congress. The second point is that the courts generally have a better track record of adjusting copyright law to deal with changing technologies in a way that's non-disruptive--that is in a way that doesn't introduce fresh ambiguities into the law.

I make both of these points in my DMCA paper, because I think they're both true.

By: Noel Le

Noel Le — Fri, 23 Mar 2007 21:46:10 +0000

The law needs to be clear and unambiguous enough that most legitimate innovators are never sued at all, or at a minimum win their lawsuits quickly and decisively.

You seem to waver between equating flexibility in copyright policy with: 1) lack of bright lines stifling personal and creative freedom and 2) the adaptiveness with which courts can apply copyright doctrine. An example of 1 is your DMCA paper, an example of 2 is your recent post on Prof Picker

By: Doug Lay

Doug Lay — Fri, 23 Mar 2007 21:29:58 +0000

Thanks for the response, Tim.

By: Tim Lee

Tim Lee — Fri, 23 Mar 2007 21:28:19 +0000

Noel, I'm not "wavering," I'm making two distinct, and mutually reinforcing points.

The first point is that increasing the ambiguity of the law is a bad thing regardless of whether it's done by the courts or by Congress. The second point is that the courts generally have a better track record of adjusting copyright law to deal with changing technologies in a way that's non-disruptive--that is in a way that doesn't introduce fresh ambiguities into the law.

I make both of these points in my DMCA paper, because I think they're both true.

By: Noel Le

Noel Le — Fri, 23 Mar 2007 20:46:10 +0000

The law needs to be clear and unambiguous enough that most legitimate innovators are never sued at all, or at a minimum win their lawsuits quickly and decisively.

You seem to waver between equating flexibility in copyright policy with: 1) lack of bright lines stifling personal and creative freedom and 2) the adaptiveness with which courts can apply copyright doctrine. An example of 1 is your DMCA paper, an example of 2 is your recent post on Prof Picker

By: Doug Lay

Doug Lay — Fri, 23 Mar 2007 20:29:58 +0000

Thanks for the response, Tim.