Tuesday, June 17, 2008

Analogy for the anti-circumvention clause

Making it illegal to circumvent technological anti-copying measures is like making it illegal to pick locks. Yes, a person could pick a lock as part of breaking into a house. But they could also pick a lock when they've accidentally locked themselves out of their own house. The breaking and entering is the actual problem (and is already illegal), the lock-picking isn't a problem in and of itself even though it can be (and most often is) used as part of an illegal act. Making lock-picking illegal would just make innocent and harmless activities illegal for no good reason. It would be more effective to increase the punishment for or enforcement of breaking and entering rather than adding an additional lock-picking charge.

The fine for circumventing technological controls is $20,000, which is 40 times the fine for simple piracy for personal use ($500). With our lock-picking analogy, that would be like if you walk into someone else's unlocked house and steal something, you go to jail for a year. But if you pick a lock - any lock, even on your own house - you go to jail for 40 years.

Now suppose you've locked yourself out of your car one cold winter's morning. But your next-door neighbour left their car warming up in their driveway, engine running and doors unlocked. And your across-the-street neighbour is a nosy cop and you can see him looking out the window. You'd go to jail for 40 years for picking a lock, but only 1 year for stealing a car. So do you try to break into your own car, or do you take next-door's car?

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