James, what is the basis for your statement that "EFF's view of intellectual property is that there should not be any."? Can you point to quotations or webpages in which EFF has taken that position?

Mr. Gordon, go to EFF's website and peek around. Although EFF claims to seek a balance in IPR policy, they criticize every and almost any possible single instance of IP owners enforcing their rights.

Look at their write-up of the DMCA case: Blizzard v. BnetD. That case was decided against the defendent for creating a program too similar to that of the plaintiff's. However, EFF's site reads: "This ruling has been widely criticized as making it impossible to create new programs that interoperate with older ones and squeezing consumer choice out of the marketplace by essentially allowing companies to outlaw competitors' products that interact with their own." EFF is careful about its selection of words here, but there's no mistaking that EFF knows how its words can be interpreted.

Look at the section on DRM at EFF's site. It states that: "If you circumvent DRM locks or create the tools to do so, even to enable noninfringing fair uses, you might be on the receiving end of a lawsuit." That says almost nothing. Losing a law suit is what matters, not simply receiving a complaint. It does not matter what any copyright owner says, it matters what the court says. Further, some courts have interpreted the DMCA to protect circumvention that does not result in nor facillitate infringement and unauthorized use.

By the way, I find EFF's handling of the term "fair use" a bit too liberal. On EFF’s site, the term is more or less generalized, framed and communicated as something that IPR holders are per se opposed to (as is innovation).

Now, look at the section on EFF"s site titled "The Battle for Your Digital Media Devices." But wait, didn't the music labels just say they're fine with their content from iTunes working on non-iPod players? Yes. The music labels, and Hollywood have nothing against interoperability. Whats stopping Apple from waiving its rights under the DMCA to allow reverse engineering of iTunes and the iPod to the extent that interoperability is facillitated? Apple is. Whats stopping Apple from either licensing FairPlay or providing only information sufficient to enable successful reverse engineering of FairPlay? Apple is. Its not the copyright holders.

I will say that EFF’s Patent Busting Project deserves some kudos. EFF goes through the due diligence of compiling prior art for bad patents, which almost everyone agrees are harmful. On the other hand, I find EFF’s position that software patents harm free speech a wide stretch.

Your mention of the Blizzard vs. BNet case is odd, Noel, since it was ultimately decided on the basis of contracts, not IPRs/DMCA.

"That says almost nothing. Losing a law suit is what matters, not simply receiving a complaint. It does not matter what any copyright owner says, it matters what the court says."

This is not true. Whether you win or lose a law suit, you lose money and time defending. EFF's point is sound. You should be applauding them for pointing out the consequences of DRM circumvention even while disagreeing with their goals.

"By the way, I find EFF's handling of the term "fair use" a bit too liberal. On EFF’s site, the term is more or less generalized, framed and communicated as something that IPR holders are per se opposed to (as is innovation)."

Much like people who frame anti-DMCA criticism as being anti-IPR's.

Lewis, are we talking about the same Blizzard case? If so, your take suggests EFF is completely off in its write-up, and they even worked on the case. If you're right, then both EFF and I are wrong (which is a possibility:)

Those who oppose the DMCA are generally also opposed to software patents as well. Although they may claim to support traditional copyright or patent law, I see nothing suggesting this other than them saying so. On the other hand, there is a difference between generalizing "IP supporters/opponents" and "fair use;" fair use is a more technical term, with grounding in both case law and statutory constructs; and thus should be treated more formally.

"Lewis, are we talking about the same Blizzard case?"

After going back and looking at the judgements, I retract my statement. I could have sworn the judge explicitly did not rule on the DMCA issue, instead opting to rule on it solely as a breach-of-contract. It's obviously been too long (a couple of years) since I read it.

"Further, some courts have interpreted the DMCA to protect circumvention that does not result in nor facillitate infringement and unauthorized use."

Can you name cases? I would be very interested to see them. If I remember, that argument was specifically rejected in Universal v. Reimerdes, and repeatedly by the Copyright Office as well.

Here you go: Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005). Enjoy!

Thanks, Noel. True, some courts have said so, but only (to my knowledge) in the context of DMCA claims where the underlying act was completely noninfringing (eg opening a garage door) - never in cases where the underlying act was putatively infringing but potentially a fair use. With the DMCA being interpreted that way, the fair use claim never gets tested in court.

Anyway, I disagree that it only matters what a court says. Getting sued is a significant event even for a large company when statutory damages for copyright can easily reach billions. With the potential for ruinous damages always present in a DMCA case, the target of a lawsuit will need to spend a bundle on legal fees even when the law's on their side.