Skylink Wins and so too might DMCA Reform Advocates

Jason’s got the scoop, and, from the quotes he pulls, this looks really interesting.

[later:] Ernest is on the case – he captures my sentiments, particularly with regard to it inspiring and frustrating.  I’m going to chew on this on my way to NY this evening – it’s a lot to take in.  The copy and access control distinction is indeed rather murky.  The court boldly brought 1201(c) to bear (SethF, I imagine, is as surprised as I am).  The court says anti-trust and misuse still apply, regardless of the DMCA.  The court even says that Chamberlain’s interpretation of the DMCA would make it borderline irrational under the test expressed in Eldred.  Here are some of the money lines:

“The statutory structure and the legislative history both make it clear that the DMCA granted copyright holders additional legal protections, but neither rescinded the basic bargain granting the public noninfringing and fair uses of copyrighted materials,

It’s a Kind of Magic

Numerous posts out there about Valenti’s latest interview silliness.  What’s most sad and most enlightening about the interview are the technical non sequiters that Prof Felten points to.  The security design process is apparently just about “stuffing … algorithms,” really cramming them in there, and then hurf, thunk, clatter, out pops DRM – “technological magic.”

Valenti is always colorful and uses simplifying rhetoric.  What I hear most clearly, though, are the DRM vendors speaking through him.    As I have experienced, DRM vendors speak just like this about security.  They go around to conferences and board meetings, hocking magic pixie dust and hornless unicorns.

So Valenti didn’t invent this view of DRM, but he’s not just innocently following the vendors – that is, he’s guilty of a sort of “willful blindness.”  The DRM vendors give Valenti the excuse not to listen to the actual experts.  DRM vendors will always tell him what he wants to hear.  Real security experts will not.  Thus, the latter are just dirty hackers, while the former are wonderful magicians.

When people choose not to listen, there is no convincing them, and thus I’m not optimistic about convincing Valenti’s kind.   For awhile, they won’t listen to these arguments about DRM.  They will, however, listen to their bottom line.  As they continue to give their money to DRM vendors, and piracy does not decline, they’ll listen to the fly buzzing out of their wallet.  Then, instead of an argument between magic and reality, we’ll just confront the reality, and argue from there.  That’ll be the day.

(This is not to minimize the potential importance of other reasons the content industries use DRM.  But I do think that they actually believe in DRM’s efficacy in preventing piracy, and that remains a major impediment in their thinking and in the larger debate.)