Re: USAT Editorial regarding the 'LaMacchia loophole'

Brian A. LaMacchia (
Tue, 02 Dec 1997 16:56:40 -0800

For the record, I long ago (basically, after the case was concluded) gave
up on trying to correct the press on stuff like this. You can't win at
that game; if someone says something it must be true, facts be damned. If
you go look at the various Congressional statements on (search on H.R. 2265) you'll see the
congresscritters repeating what each other said, and what the committee
report said, which is what Reuters et. al. write from, which creates what
the congresscritters say...

Everything Rohit says is true. Well, except for #5: once Clinton signs it
it *will* be a criminal act. Dave's case, at its core, was an ISP
liability case. The $$$ figure was manufactured by MIT in conjunction with
the Boston U.S. Attorney's office to satisfy their press needs. Fair use
is not protected sufficiently; the bill creates a chilling environment for

The big one, though, the one that grates most, is the "copyright
infringement==theft" meme. That's what the content providers want you to
believe, but it's not true. Infringement isn't "theft, conversion or
fraud" to quote Dowling v. US (the Supreme Ct. case we based our successful
dismissal argument on), it's *infringement*, a separate bundle of rights in
and of itself.

In the end, of course, none of this NET Act stuff will matter, because the
Net itself will turn black as everything moves around encrypted. Earlier
today, at the Internet On-Line Summit, Rep. Bob Goodlatte himself (author
of the NET Act) was calling for a lowering of encryption barriers *and the
encryption of on-line porn as a means of protecting children*. That's
right, encrypt the porn so the kiddies can't read it. (Ignore the fact
that kids can trade decryption keys...) If the porn's moving around
encrypted, and there are tools to make that easy, we get Hughes' Universal
Piracy Networks. Who cares if infringement is a crime if everyone is
trading encrypted bits? No one can tell those encrypted bits are
copyrighted if they're gibberish to those lacking the proper keys...

Sorry for the rant, but I'm tired of the disinformation campaign...


At 02:27 PM 12/2/97 -0800, Rohit Khare wrote:
>This is so infuriating. To distort what David did in the nation's largest
>neeewspaper, whilst compromising morals on the issue at hand to boot.
>1) not him who put it there (it was an open forum too open perhaps)
>2) the $1M figure is a gas
>3) the notion he is a jolly nose-thumber really grates, of course
>4) fair use is indeed, not protected enough in the bill
>In the trust paper, I formulated my personal insight as to what consitutes
>criminal vs civil. Civil law -- contracts -- are sufficient for any trust
>decisions where there is recourse available to the parties to the contract.
>Audit and rollback. Anything involving monetary damages, for example.
>Criminal law is reserved for those trust decisions which lead to
>*irreversible* actions, consequences outside the scope of negotiation.
>as a whole steps in with law where contracts hit the wall.
>Off soapbox and back to work on reports for a few people who know I owe them