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[dvd-discuss] Re: [DMCA-Activists] Re: CSS licensing on manufacturers vs. consumers

Seth Finkelstein wrote:
>         So she's talking about any contracts binding the DVD player
> manufactures who have licensed CSS.
>         However, lest this point be misunderstood, I think it's clear
> Robin Gross wasn't addressing whether shrinkwrap licenses were valid
> contracts - that's an entirely different issue.

Yes, she very wisely only addressed Ms. Peters' confusion in terms of the
licensing terms for the manufacturers, while also delivering a message that
hit home where Ms. Peters was trying to apply her confused idea: That
somehow the consumers are entering into a valid contract of terms when they
purchase either media or media players, which they might be violating if
they gained an exemption.  This is one of the hugest misconceptions
undergirding approaches to the application of exclusive rights policy to the
realm of digital information and communications technology: the usage of
licenses of dubious validity.

This is, by the way, why copyleft is so wise and prescient, why it relies on
nothing that requires consent on the part of users of an expressive work. 
Copyleft is based entirely on exclusive rights which authors have been
accorded, so it is not a contract -- it's just a notice.  Other licenses go
beyond this, wherein authors take on powers and set terms that they may not
necessarily have under exclusive rights policy, so they require some form of
consensual mechanism.

This point is independent of the analysis which recognizes that "shrinkwrap"
licenses and the like are of dubious standing because the consumer is not
necessarily sufficiently informed.

>         I still like my hearing best :-). I think it's got the most
> "(Laughter.)" moments.
> http://sethf.com/anticensorware/hearing_dc.php
> MR. FINKELSTEIN: ... I would also like to say that, for all this talk
> of the pornography sites, since they were blacklists, they are really
> bad collections of pornography sites.  (Laughter.)

Ah yes, your work was very incisive, not the least because of the element of
levity with which your testimony was leavened.

Seth Johnson


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