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Cellphone Unlocking Effort a Trojan Horse to Gut DMCA Digital-Locks Copyright Enforcement – Part 10 Defending First Principles Series

I have repeatedly warned that the so-called copyright “reform” movement is deceptive because it masks its true purposes. It knows that the real change it seeks -- to neuter anti-piracy enforcement – is an out-of-the-mainstream idea and a political loser. 

So the copyright-neutering movement uses an elaborate Trojan-Horse deception – a politically-contrived “cell-phone unlocking” problem -- as its political entrée into the copyright legislative process to forward its real goal of gutting DMCA digital-locks enforcement.

As Ars Technica explains: “…a new coalition called [FixTheDMCA.org] has launched an effort to repeal the section of the Digital Millenium Copyright Act that forbids breaking “digital locks”… “the group’s goal is to build support for a repeal of section 1201 of the DMCA, the so-called “anti-circumvention” clause.”

Importantly, this coalition includes many of the main players behind the unprecedented mass digilante campaign that killed SOPA/PIPA anti-piracy enforcement legislation last year with the charge that enhanced piracy enforcement was censorship of free speech and would break the Internet. This movement hopes to rewrite history and deceive Congress that the flashpoint opposition to one wrongheaded, lightening-rod, provision in the House bill – DNS blocking – now means that most people no longer support anti-piracy enforcement. That’s deceptive.

Remember, Derek Khanna guilelessly explained, a critical goal of this movement is to “change the dialogue and reframe the issues” surrounding copyright. I believe the reason that the copyright neutering movement pursues a PR-driven legislative strategy is that it knows it politically cannot take on the legitimacy of copyright and intellectual property rights head-on. That’s because property rights enforcement represents common sense deterrents to stealing and counterfeiting that most everyone appreciates are essential to a safe, productive, and innovative society.

This movement posits, if they somehow can get people to support outlier-exception fixes, like cell-phone unlocking for those who have paid their full contractual obligations, that no one will notice when they take the inch they are given, and try and take a mile by attempting to repeal the entire DMCA anti-circumvention clause (section 1201)?

Moreover, somehow they imagine people won’t notice or object when a “narrow” legislative “cell-phone unlocking” fix suddenly transmogrifies into a deep debate over whether to: 1) effectively gut the most important part of anti-piracy enforcement law; 2) de facto legally-immunize the next generation of Napster, Grokster, or Pirate-Bay piracy-enabling intermediaries; and 3) de facto produce jury nullification for Google in the three pending seminal copyright enforcement cases against Google: Authors vs. Google Books, for Viacom vs. Google-YouTube and Oracle vs. Google-Android.  

Remember, this new Fix-the-DMCA coalition is just a new PR face for the old Free Culture/Free Software movement that does not believe software and digital information should be copyrightable, patentable or proprietary. It can’t be said enough that their definition of a “free and open Internet” is where “free” means no payment or permission required and “open” means no property respected.  

Amazingly this movement opposes the principle of digital “locks.” In our society most people lock their house, yard, room, car, bike, money, etc. Locks are our friend and our protector. Locks are only the enemy to those who seek to take something from someone without their permission. We lock what has value and what we want to protect or control.

For example, LifeLock® protects our identities from being stolen online. If the principle is that digital locks are somehow wrong in order to protect copyrighted works, wouldn’t it logically follow that digital locks to protect one’s identity or privacy are wrong too? Would mainstream Americans and legislators oppose the principle of “digital locks” to protect our digital/physical lives and property, if they knew that was what was really being debated?

Even more amazingly, this movement apparently is for the principle of “circumvention” in seeking to repeal the anti-circumvention clause of the DMCA. Look up the synonyms for “circumvention;” they are escape, elude, evade – all things people want to do when they have broken the law or have stolen property. Seeking to repeal the DMCA anti-circumvention clause is pro-evasion/elusion from the rule of law.

If they oppose copyright law and the Constitution that authorizes copyrights and patents, then they should be open and say so. It’s patently deceptive to cloak their effort as “reform” when their real goal is to eviscerate copyright law by gutting one of the single most important provisions in law to prevent mass online piracy and counterfeiting.  

One of this movement’s most nonsensical slogans for cell-phone unlocking is: “if you can’t open it, you don’t own it.” Let’s expose the nonsense here by simply turning this double-negative sentence construction to an equivalent positive sentence construction. It would now say: “if you can open it, you own it.” That would mean if you can open a door to a store or a house you own the store or the house; or if you can open a display case, you own whatever’s inside. What inane PR and lobbying.   

 What mainstream common sense knows the right slogan is: “to own it, pay for it in full.”    

In sum, the copyright-neuterers PR game here is to trick people with a classic logical fallacy: if people agree that fully-paid for cell-phones should be able to be unlocked by the owner, then people must agree with gutting all DMCA digital locks for all copyrighted works regardless of payment to, or permission from, the owners. That’s deceptive nonsense.   

At core, this Free Culture/Free Software Foundation campaign to gut the DMCA anti-circumvention clause is a social values and morality fight. Is it legitimate for the Government to protect citizens’ property from theft or counterfeiting? Is DMCA circumvention – the willful aiding and abetting of stealing, piracy and counterfeiting via online tools and applications – right or wrong? At bottom, this coming debate over repealing the DMCA anti-circumvention clause is that simple.

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Defending First Principles Series

Part 1: Debasing Free Speech as No-Cost Speech

Part 2: The Copyright Education of Mr. Khanna

Part 3: A Conservative-Libertarian Rift on Copyright Reform?

Part 4: Why Conservatives Should Be Skeptical of Copyright Reform

Part 5: Copyright Reform or Neutering? Depends If Baby's Thrown Out with Bathwater?

Part 6: Net Neutrality’s Misrepresentation of Free Speech

Part 7: Exposing the Copyright Neutering Movement’s Biggest Deceptions

Part 8: Mr. Khanna’s Call to Arms over Cellphone Unlocking Is More Copyright Misrepresentation

Part 9: Cellphone Unlocking Legal, But Cellphone Lockpicking Illegal – Keeping Copyright Neuterers Honest

Q&A One Pager Debunking Net Neutrality Myths