Re: [dvd-discuss] dvd-discuss] Harlen Ellison and the DMCA...

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On 6 May 2002 at 10:37, Arnold G. Reinhold wrote:

Date sent:      	Mon, 6 May 2002 10:37:19 -0400
To:             	dvd-discuss@eon.law.harvard.edu
From:           	"Arnold G. Reinhold" <reinhold@world.std.com>
Subject:        	Re: [dvd-discuss] dvd-discuss] Harlen Ellison and the DMCA...
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> >The judgment is at
> >
> >
> >
> >http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882 
> >567cf005ac6
> >f9/47819ca5ada002af88256b7c006a4494?OpenDocument
> >
> >
> >It makes interesting reading. The judge had to go back the the legislative
> >history to interpret the DMCA. I realize that there is a school of law that
> >believes that laws must be interpreted by congressional intent rather than the
> >words themselves but how should the rest of us interpret them? I'd say  if you
> >a judge has to go to the history to figure out what the law says, then that
> >should be a valid defense against high damages if any.
> 
> 
> I think it is a very well written and analyzed opinion.  If the 
> ruling survives unchallenged, I think it's a big victory for Usenet.
> 

Yes.

> The need to go back to legislative history stems, I believe, from 
> plaintiff's attempt to stretch the meaning of the law. For example 
> they argued that AOL exercised enough editorial control to lose safe 
> harbor protection under DMCA just by deciding which Usenet newsgroups 
> to carry. They also claimed that by keeping Usenet messages for 14 
> days AOL was in a different category from those who merely transmit 
> content.  The judge found good reason to dismiss those claims in the 
> legislative history. Future judges can simply cite this opinion. 
> With any law there will be situations where the meaning isn't 
> completely clear. That is how the the system is supposed to work.
> 

Actually, whether that is HOW the system is supposed to work, or how it DID 
work or how it was planned to work is another whole matter for discussion and 
one which divides the the Judiciary even to the Supreme Court level. In this 
case,  HE was splitting hairs here and the Judge called it that. What was 
interesting is that the judge went back MANY Times to the legislative history. 
Legislative history is not meant as a substitute for a well written law (will 
anybody argue that DMCA is?) nor is it meant to provide everyday 
interpretation. It is meant to be used in very obscure and non obvious 
situations. Instead we have a situation where the Judge had to go back and read 
it extensively to interpret a law that the judge publically questioned and 
criticised somewhat in the verdict.

In the cases where a law REQUIRES legislative history to understand, then how 
is one ot obey the written law. One is forced to become a legal scholar or seek 
out a legal scholar. I used the word "scholar" deliberately. Lets be modest ;-) 
The legal and technical talent here has been discussing this for a few years 
and other than the stupidity of the DMCA we are still being amused by the 
applications of it. Sony's Aibo. Public DOmain Fonts...a law should not require 
extensive legal scholarship to understand just what is or isn't allowed...or 
else the law is badly written.

> In this case, of course, there were no damages. I don't know what the 
> general practice is, but in the original DeCSS case, Judge Kaplan did 
> not award attorney costs against 2600 because he felt there were 
> legitimate questions presented.
> 

Actually he got a few grand from defendant Robertson....BTW other than 
providing for his wife (and ex wives) I don't know what HE is really getting 
out of all this monetarily so it's something else....I think it goes back to 
his adminishment to "kill to protect the integrity of your work" from the early 
70s.

> 
> Arnold Reinhold