In my opinion, there will never be a broadly successful wholly open-source consumer computing platform, mobile or otherwise, as long as the DMCA anti-circumvention provision is in place.

I especially like the reminder at the outset that the Supreme Court regards fair use as an essential safety valve that keeps copyright law in compliance with the First Amendment. This point needs to be hammered home again and again when content industry apologists dismiss fair use as a relic whose scope can be diminished as “transaction costs” are supposedly reduced.

The jury is still out on whether the “enforcement mechanism” provided by the DMCA really works to reduce unauthorized copying. Actually, in the case of music, the jury verdict is in, and it’s a resounding NO. In the meantime, the curbs on technological innovation are real, and harsh. In my opinion, there will never be a wholly open-source consumer computing platform, mobile or otherwise, as long as the DMCA anti-circumvention provision is in place.

As for whether there should be penalties for overstating the rights of fair use, I think there already is one. It’s called being found guilty of infringement. For better or worse (worse, mostly), those corporations who try to overstate the limits on fair use don’t face any comparable penalty – a little negative publicity maybe, a few dollars wasted on lawyers, but nothing worse than that.

Despite finding little to agree with in Solveig’s critique, I do commend her for arguing in a more reasonable manner than her PFF predecessors DeLong and Ross.

Singleton raises the “enforcement problem”. From the content producers side, enforcement means the ability to extort revenue from the consumer. From the consumer’s side corporations are being given the power to be judge, jury, and executioner. It seems the “enforcement problem” Singleton wants to solve is the legitimization of corporations having the unilateral ability to create and impose “regulations” (contracts by adhesion).

How can they read them if the contracts are not available pre-sale? Mind-reading? How is a purchases to “vote with their dollars” and accept/reject DRM if they don’t know what the effects will be?

How can they read them if the contracts are not available pre-sale? Mind-reading? How is a purchases to “vote with their dollars” and accept/reject DRM if they don’t know what the effects will be?