But is it moral?
Dec 01, 2005
10:14 PM EST
|While I conceed that the DMCA, BSA, et. al. are not the proper solution to this problem, I thin you're missing the point. To be honest, it doesn't matter what you want. Simply claiming that the DMCA is unconstitutional doesn't make it so, and I'd be interested which part of the constitution you believe it violates.
Of course you can't morally claim that American cars are the only to be purchased. However, the music industry (for example - I'll stick with music for the remainder of this diatribe) isn't forcing you to buy their music. It appears to me that the major labels have the same goal in mind, though - "don't steal my shit". If you want it, it's on our terms. Now, as a consumer, you have the perfect choice here - either agree to the terms and purchase it, or don't. Now, what Microsoft has to do with this is purely a stretch... Sure, they're a hell of a punching bag, but you seem to agree with a guy that generally dislikes Big Business, regardless of their business plan.
To add upon that, I'm not trying to defend the *means* of copyright-holders. Again, I conceed that they're doing a poor job of protecting their rights with equal foolishness as those stealing from them.
And why did we start exporting jobs? A number of economic reasons, such as tarriffs, minimum wage, labor unions, bureocracy (sp?), and other political and social foolishness play a major role in the issue. It's time to stop placing full blame on the producer of a product and start taking a look at the whole picture.
Next item, you're not talking IP at all - you're talking copyright. IP is a popular bashing ground, but irrelevant in this case - the fight can be fought elsewhere. You then jump to the concept that you can do what you want with your property, such as a written work, but since you feel you're being fair about it, it's moral. However, a music company wants to price themselves out of business, so you have some sort of implied right to another's product. You don't, any more than they have unfettered right to your product.
You also jump in to the implication that quality (or lack thereof) is a deciding factor in how enforcable a law or contract can be. If I turn out a piece of crap with a Draconian usage agreement, it's no less moral than turning out gold with a "fair" agreement. Either way, *I*, as a producer decide my terms - you have no implied right to my product. If I price myself out of business, it's my own fault. But if the business model works, why change it?
The claim that your computing platform is the reason for an excercise in control is silly. It's not the operating system. Again, you have no implied right to their product. And you do not always just license the product - if you purchase it with restrictions, you can't simply throw aside the restrictions afterwards. And to assert that (as you state) "property" isn't exactly that is the reason that it must be protected in the first place. Of course enforcement isn't ideal. But it's no reason to hide theft behind "fair use".
And finally, to claim that you have a right to break their means of protection, as evil as you believe it to be, in order to do with it what you want is ludicrous. They owe you the right to play it how and where you want about as much as you have an obligation to purchase their product.
That is to say, none at all. Welcome to a free market.
Dec 01, 2005
11:50 PM EST
|The question of DMCA constitutionality is a bit more subtle than violating any specific provision.
You must understand that the constitution is not a municipal code. Rather, it is a grant of power to the state. Powers not granted are not available.
Nobody contests the power of Congress to grant copyrights, patents, and trademarks. That is clearly granted by Article 1, section 8.
The problem comes with the DMCA's anti-circumvention measures. These measures apply regardless of whether any infringement takes place. That, in itself, may represent an over-reach of Congressional authority, but is compounded by the fact that anti-circumvention measures prevent fair use of copyrighted materials.
Fair use is a bundle of circumstances under which copyrighted material may be used without the permission of the author. Fair use is codified in the copyright statute, and, one would be tempted to say that whatever Congress giveth, Congress can taketh away, except that the codification did not create fair use; it merely acknowledged a body of case law that had been developed over the years. Most of that case law recognized constitutionally guaranteed rights based on the first amendment.
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