Re: Confused reasoning about the DMCA

John Gilmore — Sat, 15 Oct 2005 03:54:47 -0000

Contracts require that the terms be spelled out in advance, so that both parties know what they are agreeing to. The terms of DRM systems are not spelled out -- not in the ads for DRM'd products like the iPod, not in the user manuals for these products, nor anywhere else. Not even in the "contract of adhesion" EULA, if any. They are "hidden terms" that are imposed on the consumer without notice. Undisclosed terms cannot form part of an actual contract with the consumer, so the consumer cannot be penalized under contract law for violating those undisclosed and un-agreed-to terms.

For example, the terms of the DRM on DVDs are spelled out in a secret 50-page contract between the "DVD Copy Control Association" and the DVD player vendor, and another between the DVDCCA and the DVD pressing plant, and another between the DVDCCA and the publisher of the DVD.

I think most DRM systems would die in the market if consumers were actually notified of the restrictions involved. It seems that the vendors agree; they document every other part of their products.

Re: IM: The Next Regulatory Target?

John Gilmore — Fri, 06 Oct 2006 19:56:07 -0000

Yes, the appropriate reaction is to punish individual criminals rather than to restrict speech, particularly the speech of minors. But please skip the perjorative language ("freak", "pervert") when advocating for this.

(And let's see whether Foley's whole "crime" was speech -- or whether there was more to it than that. It cannot be criminal to talk about sex with a minor -- else minors will end up with even less information about sex than today's taboos already choke off.)

In a society that holds young people up as the epitome of sexiness, it's not perverted to want to have sex with teenagers! It's not even perverted or illegal to *have* sex with teenagers, if they're roughly 18 or 19 (depending what state you're in). I haven't seen the full extent of the scandal (ho hum) but the stuff I read was "virtual sex" through IM, with a former employee a long distance away -- hardly coercive, not likely to spread disease, easy to evade if the other party wants to skip it.

Personally I know a lot of people who are proud to call themselves perverts, but it's a word in the sense of "nigger" -- they've had to use it for themselves as a way to reclaim it from those who use it to disapprove of them.

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Re: Confused reasoning about the DMCA

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