Re: [dvd-discuss] More news from the EFF on slashdot

[Michael.A.Rolenz(at)aero.org]

If I were the Judge, my retort to Ashcroft and the RIAA would be "OH...so 
you never had any intention of sueing, (despite what I can clearly read) 
then you don't have any objection to summary judgement do you!"




"John Zulauf" <johnzu@ia.nsc.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
10/12/01 08:53 AM
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        Subject:        Re: [dvd-discuss] More news from the EFF on slashdot




Tim Neu wrote:

> 
> There's also more of the "No one ever planned on taking action..." 
drivel.

How *anyone* can say that with a straight face in the post-Sklyarov
environment is amazing.  Given that similar "non-threats" from Adobe
were used as the basis and justification for gov't action against
Dmitri, this doesn't even pass the "giggle test."  Adobe could have even
have promised in an affidavit not to sue (which they didn't) and still
have "drop a dime" on him.  The SDMI's claim they never intended to sue
is just as empty.  Beyond that is since the distribution of online
journals is unbounded, there can be no meaningful "statute of
limitations" as each web serving of the page would constitute an act of
trafficking.  This would mean that the plaintiffs would need a perpetual
grant of immunity from prosectution by the current and all future
administrations -- FBI, DOJ, etc.  Such an assurance cannot be granted
without a frontal challenge to the law.

Oddly enough, it is the addition of criminal penalty in the DMCA that
makes this claim so easy.  Absent them, a "promise not to sue" would be
valid -- though you would need one from each and every copyright holder
publishing in the circumvented technology, including those who haven't
done so yet.** 

.002


** (is it legal to have such an impossible standard in law, where no one
can reasonably seek indemnification, as the totality of plaintiffs is
large, unknowned, and includes an unbounded future stream of additional
plaintiffs)