---------- Forwarded message ----------
----- Original Message -----
From: "Michael Sims" <jellicle@inch.com>
To: <wwwac@lists.wwwac.org>
Sent: Wednesday, December 26, 2001 10:55 PM
Subject: [wwwac] DMCA
On Wednesday 26 December 2001 06:00 pm, David Fenton wrote:
THIS IS A LIE.
David, you're wrong. In the U.S. legal system, laws passed supercede
earlier laws that conflict. If a law is passed, "it is legal to strangle
ducks", then it is. If a new law is passed, "it is illegal to strangle
ducks", then it is not. If still another law is passed, "it is legal to
strangle ducks", then it is once again. There's no need to explicitly
delete earlier conflicting laws - although this is sometimes done for the
sake of tidiness - the later date wins, regardless.
So you're wrong there. But you're mainly wrong because you don't
understand the DMCA. You don't understand how it works, you were fooled
by the subterfuge involved, which, I might add, was explicitly designed to
fool, so you can hardly be blamed.
Let's see if an analogy helps.
There is a patch of grass. It is community grass. It is green and
luscious. Everyone likes to walk on it. If Congress banned walking on
it, everyone would be upset. But certain companies don't want people to
walk on it. They get a law passed. It says: "It is illegal to climb over
or break down any fence over one foot high, even to get to a patch of
grass. It is also illegal to tell anyone else how to climb over or break
down such a fence."
Today the companies are building fences around almost every patch of grass
on the planet. You can still walk on the grass, to be sure - that hasn't
been outlawed. You just can't cross a fence to walk on the grass. And
most of the grass is surrounded, all the way around, by fences. Cross a
fence and you've broken a law. The law barely even mentions grass,
doesn't seem to be - on the face of it - much concerned with grass, only
fences, and yet it nevertheless has kept essentially everyone from walking
on the grass.
Which is what the companies wanted in the first place.
If you don't understand this analogy, you don't understand the DMCA. It
is an extraordinarily powerful and far-reaching law. If I were to
continue the analogy, I should go on to describe the possibility of
putting gates in the fences, and charging admission to pass through the
gates - walking on the grass is free you see, but passing through the
fence to get to the grass is not. Not only is there a turnstile, there's
also a bouncer at the gates, and if he doesn't like the look of you, you
can't pass. Anyone can walk on the grass, but only the people the bouncer
likes can pass through the gates. And it's illegal for *anyone* to climb
the fences, even if they have no other way to walk on the grass. Think
about that for a while, and you might see where Ruben and Jay are coming
from.
Or maybe not. The DMCA is a nice piece of subterfuge, don't be ashamed if
you don't understand how it works. Jay and Ruben are saying "The DMCA
keeps you from walking on the grass" and you are saying "The DMCA doesn't
_outlaw_ walking on the grass", which is true, in a very limited sense of
"true", but basically misleading. The DMCA is an anti-grass-walking law
which does not outlaw walking on the grass.
--
Michael Sims
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