November 23, 2024

Hot Legislative Action

Declan McCullagh at news.com gives a rundown of the tech-regulation bills that are likely to be on the table in the new congressional session.

Many familiar bills will be back. At least one anticopying technology mandate like the Hollings CBDTPA is likely to be proposed. Changes in committee membership may make a CBDTPA-like bill more viable than it was before. (Fritz’s Hit List is warming up in the bullpen, ready to resume if necessary.) Congressional staffers also also predict a new and improved version of the Berman peer-to-peer hacking bill. And the pro-consumer and pro-fair use bills from Boucher, Lofgren, and others will be back too.

Declan predicts that anti-spam legislation will be a hot area, since the Direct Mail Association now backs anti-spam measures. This just increases the odds that Larry Lessig lose his bet and will be looking for work. (I’ll write more about Lessig’s bet in coming days.)

DVD-Jon Acquitted

A Norwegian court has found Jon “DVD-Jon” Johansen not guilty of criminal charges relating to the creation of the DeCSS program for reading encrypted DVDs. CNN has the story.

Apparent Overblocking by CyberPatrol

Today, while visiting a large company, I tried to visit some of the websites on this site’s link-list. I found that three of them were blocked due to “possibly inappropriate content.”

The three blocked sites were Eszter Hargittai’s blog, Arnold Kling’s “The Bottom Line”, and Donna Wentworth’s “CopyFight”. (The whole Corante site, which hosts several blogs besides Bottom Line and Copyfight, appeared to be blocked.)

My hosts told me that their company uses CyberPatrol to filter their web access. So apparently CyberPatrol erroneously blocks more than 10% of the blogs I read.

More On Elcomsoft's Acquittal

Orin Kerr at The Volokh Conspiracy explains why ElcomSoft’s ignorance of the law was an excuse in this instance.

Also, some are suggesting that jury nullification may have played a role in ElcomSoft’s acquittal. (“Jury nullification” refers to a jury’s refusal to find guilt under a law because they consider that law unjust.) An AP story says:

The defense argued that the program merely enabled owners of Adobe eBook Reader software to make copies of e-books for personal use. If an owner makes a backup copy of an e-book or transfers it to another device he owns, they argued, that is permitted under the “fair use” concept of copyright law.

Jury foreman Dennis Strader said the argument made a big impact on the jurors, who asked U.S. District Judge Ronald M. Whyte to clarify the “fair use” definition shortly after deliberations began.

“Under the eBook formats, you have no rights at all, and the jury had trouble with that concept,” said Strader.

ElcomSoft Acquitted

Lisa Bowman at news.com reports that the jury has found ElcomSoft not guilty of criminally violating the DMCA.

It will be interesting to watch the reaction to this. Some people may try to read a lot into the verdict, but this is probably a mistake. Apparently, the verdict relied not on the drawbacks of the DMCA, and not on whether ElcomSoft’s actions were morally justified, but on the narrow question of what ElcomSoft knew about the DMCA when they sold their product. Not knowing the precise limits of the DMCA, ElcomSoft could not knowingly violate it.