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Why I’m Suing the US Government (bunniestudios.com)
1855 points by ivank on July 21, 2016 | hide | past | web | favorite | 307 comments



This reminds me of a new patent Apple filed to disable video recording on iphones. Would winning this suit prevent that from being enforceable?


DJ Drama, the mixtape guy, was raided under the same law. It's an interesting story, google "dj drama raid"


The whole DMCA is a steaming pile, but I guess I'm ok with piecewise dismantling.


I cackled at the former, homeless vegan (or thereabouts) who started a shitstorm in the comments.


I'll support;


yes I agree, and also, what? why should PP's question be downvoted-to-hell?: He's entitled to defend the other side here.

Not saying you did it, but I had to comment someplace.


We detached this subthread from https://news.ycombinator.com/item?id=12137853 and marked it off-topic.


> HN is a weird place to bemoan prices when many here are seeking unicorn valuations while disrupting industry.

I think the insulting tone towards those that disagree with him might have something to do with it. And the above statement is just plain absurd.


his "above statement" is not at all absurd, it reflects the thinking of somebody who is drawing a parallel because they are clearly educated in the Nobel prize attracting (i.e. hardly obscure) field of microeconomics; if you can't see that, am I right in guessing you have not studied micro? Cuz if you did, you missed a chunk of it.

| HN is a weird place to bemoan prices when many here are seeking unicorn valuations while disrupting industry

HN is a place where many seek unicorn valuations which are only achievable from monopoly rents. Monopoly rents are what the headphone USB trick is attempting to collect (see bundling). That's what makes it pertinent to state "weird place to take this side" especially so vociferously... well, weird side to take unless you are not educated about econ and are unable to decode what's actually happening.

If the software producer did not try to enforce copy protection through the USB scheme, they would presumably face the problem of people copying the software and buying aftermarket headphones. In a large scale industry like operating systems (Microsoft Windows) such rent seeking behavior is to be deplored because prices of individual copies of the software should approach their very-inexpensive marginal cost. But the marginal cost of a niche piece of software such as this ADA software is complicated by the difficulty in earning back the development costs. This is the justification for patents, etc. whether you believe in it strongly or less strongly or not. I am less strongly a believer, but I'm not a pussy who downvotes people who disagree with me.


I did not intend for it to be insulting. I often see posters complain about laws that prevent them from shoehorning them into and industry start making money, and defending similar laws when it's in their best interests. My original comment was a merely to argue the other side of the argument because HN has a tendency to be two-faced when it comes to topics like this.


you were downvoted because HN is not the friendly place it pretends to be: they don't like what you said. You only get to sneer at people if you drink the KoolAid. They hide behind the "it was the way you said it" excuse when they don't share your POV.

I don't share your POV btw, but I got downvoted because they don't like that I defended your right speak because your POV is unacceptable here. And this, to move the topic further afield, is why codes of conduct don't work: it's just another flavor of Turkish Pres Recep Erdoğanian "thin skin to disagreement", or "I don't like your opinion in one area, so you'd better shut up about everything else"


[flagged]


Some people just, you know, read the article.


Maybe because people here care about this subject. Wild idea, I know.


(silent nod)


I do appreciate the effort to protect everyone's constitutional right. I wish best of luck to the pursuit.

However, I feel like there is something very very wrong about method and intention of this type of actions/complains.

One thing always bugs me about Americans: despite the liberties that they enjoy, despite the very real capacity to impact change in their government and laws, they all hate "the Government." Who is "the Government"? Wait, ain't them the very candidates that you the people vote into offices?

Like this idea of "suing the US government." Who are you suing? The executive branch? Why are you suing them? This is over a law. It's a piece of legislation. The executive branch merely, you know, execute the laws. Why not sue Congress? Oh wait, why sue Congress when you can simply vote them out of office? Oh wait, why "stop enforcing" the laws when you can, you know, CHANGE the laws?

This kinda reminds me of the libertarians' ideas of obstruction of legislation so that "the government does not spend more." If not spending is the right thing to do, why not educate people that. Even if one believes that 47% of the population is "takers," 53% is still a majority. So teach, advocate, change minds. But no, they prefer to obstruct their country, risk the centuries of their national reputation, put t heir fellow citizens to starvation. You know, if this happens in schoolyards, we probably call it "bullying." But if a bunch of libertarians do it, it's "principles."

Obviously, I agree with the plaintiff here. However, the method is still wrong. And different from above, there are very few "takers" here. Mostly, it's faceless businesses that (let's be frank here) few people like. So why not take the high road? Why not educate your fellow citizens on the danger of the laws? Why not change minds? Why not raise money for candidates who will change the laws appropriately?

In short: why not be a citizen rather than a rebel? Why not change the system for the better rather than obstruct it? Why not make your society/country a better place rather than simply fight it?


This is how the checks and balances of American government work, or are supposed to, at least.

Legislation is inert. The Executive exists to execute the will of the people expressed through the Legislature. The Judiciary interprets legislation, particularly the interactions and priorities of various laws, ranging from the Constitution, to legislation, to case law. This in turn informs the Executive as to how to execute the legislation.

Therefore, if a citizen is of the opinion that the Executive is doing a bad job of balancing concerns in enforcement (in this particular case asserting that 1201 is unconstitutional due to the 1st Amendment), they sue the Executive. Again, this is entirely in keeping with the structure of checks and balances American government is founded on. When it works, it works well.


> "Oh wait, why sue Congress when you can simply vote them out of office?"

That can be radically difficult because of gerrymandering.

That aside, launching a public campaign, garnering votes, and voting on a _single issue_ is often the wrong way to elect a representative.

For instance, I think the 2nd amendment is actually a good idea to prevent invasion of a foreign force (an armed population is very hard to rule over). However, I pretty much never vote for candidates that support the 2nd amendment because they often also deny climate change, vote for private prison control, etc. I can't go with their whole platform. I don't want them representing me.

So in those cases, when you have one issue - especially when it's just part of a whole (e.g. just section 1201) - it seems like the right approach, especially when you think there's a piece of legislation (like the Constitution) that supersedes and invalidates the legislation you're looking at.


> That can be radically difficult because of gerrymandering.

Duverger's Law also complicates things:

https://en.wikipedia.org/wiki/Duverger%27s_law


> Who is "the Government"? Wait, ain't them the very candidates that you the people vote into offices?

Yes, the very candidates we vote into offices chosen from a menu prepared by the 0.1% of the wealthiest people in the country.

Please see Lessig's TED talk on U.S. Democratic process.

https://www.ted.com/talks/lawrence_lessig_we_the_people_and_...


The organizations who benefit from these laws have significantly more lobbying power and popular influence than anyone else can hope to gain. Ostensibly one reason courts exist is to allow harms to smaller players to be addressed.

I could make a bulleted list of why a republic doesn't work very well to tame media oligarchs, but it boils down to control of the media and decades of experience with framing the public conversation.


I think you might have some misconceptions about the structure of the American legal system and about American politics.

> One thing always bugs me about Americans: despite the liberties that they enjoy, despite the very real capacity to impact change in their government and laws, they all hate "the Government." Who is "the Government"? Wait, ain't them the very candidates that you the people vote into offices?

Fear of government is essentially a founding value of the United States, but I agree that people often go too far with it.

> Like this idea of "suing the US government." Who are you suing? The executive branch? Why are you suing them? This is over a law. It's a piece of legislation. The executive branch merely, you know, execute the laws.

Because that's how American constitutional law works. If you believe a federal law to be unconstitutional, you sue "the United States" so the courts can rule on the matter. The Justice Department, part of the executive branch, which for all intents and purposes is the government's legal team, is then tasked with defending the law.

Also, in constitutional law cases it's common for the plaintiffs to not seek monetary damages of any kind, just for the courts to affirm the rights they're asserting and remedy the specific situation that led to the lawsuit.

> Why not sue Congress?

The only time you would really have standing to sue Congress is if it did something to you directly, like you walked into Capitol Hill and one of the security guards roughed you up for no reason. Otherwise, Congress is acting on behalf of the government, and if you don't like acts of Congress you sue the government as a whole.

> Oh wait, why sue Congress when you can simply vote them out of office? Oh wait, why "stop enforcing" the laws when you can, you know, CHANGE the laws?

A couple reasons.

One, as an American citizen, there are at most three members of Congress you vote for: your Representative, and your two Senators. That's three out of 535 members. If you don't live in a state, you have no representation at all. So even if you can energize your neighbors to agree with and vote like you, it's still hard to sway the tide of national lawmaking.

Another reason is that it simply might not be politically possible to seek relief in Congress, because you're suing for a right that's politically unpopular, or for the rights of an unpopular group. Think of all the lawsuits involving flag burning, sodomy, the KKK, and the Westboro Baptist Church.


The interests of the lawmakers are more aligned with corporations with deep pockets than with the general population (at least regarding copyright laws).

Fixing this issue via the legislative process would therefor require realigning lawmakers with their constituents, which could be done possibly by enacting laws which prevent contributions from corporations (which is itself something that lawmakers may disagree with their constituents about) or by a grassroots campaign to basically replace the entire legislative branch with non corrupt law makers.

Both of these paths are slow and difficult, if possible at all. Meanwhile, there is an argument that the law is unconstitutional which means that it could be repealed immediately. We are still completely within the realm of being a citizen. This is the whole point of the checks and balances system.


> Why not educate your fellow citizens on the danger of the laws? Why not change minds? Why not raise money for candidates who will change the laws appropriately?

Because that's incredibly inefficient when compared to taking someone to court. Most people don't care about the things you care about, and they shouldn't have to -- that's what the courts are for. Democracy is a great last resort, but it should only be used when all other options have been exhausted.


> You know, if this happens in schoolyards, we probably call it "bullying." But if a bunch of libertarians do it, it's "principles."

When a bunch of civil rights activists do it, is it still "bullying"?

Similar lawsuits are why Texas and other US states can't enforce their anti-homosexual sodomy laws anymore.


I studied section 1201 thoroughly during law school and I think this post doesn't give a fair characterization of it. The reason this statute exists is because companies were unable to devise protection for copyrighted works that hackers were not able to immediately circumvent. As a result, the government stepped in and created 1201 to make it illegal for someone to circumvent some form of access control that a company used to protect their copyrighted works. The purpose of the statute isn't to destroy <insert Internet activist claimed right> but is to make it much less expensive for a company to protect its products. I don't see anything wrong with that.


But if you circumvent copy protection for the purpose of sharing copyrighted works publicly then you were already doing something illegal before section 1201. All section 1201 does is also make it illegal to circumvent copy protection even if you don't do anything else illegal under copyright law, like keep copies of movies you bought privately in a digital collection that you can back up, or using software that you payed for when you aren't connected to the internet. If we think circumventing copy protection for the purposes of copyright infringement is extra bad, why not just add additional penalties to additional copyright infringement?


"protect" is a biased term. One person's "protect" is another's "control". You mentioned "access control"; however, copyright has nothing to do with access control. Copyright is not an unlimited right to control all possible uses of a work; DMCA 1201 turns it into one, by enshrining whatever access control restrictions a piece of software implements into law.

Ignoring fair use for a moment (which DMCA 1201 also breaks, so that's another problem), copyright restricts copying. DMCA 1201 produces a restriction on usage, which copyright does not control.

DMCA 1201 doesn't actually prevent you from copying a DVD, for instance. DMCA 1201 prevents you from reading and playing a DVD using anything other than software approved by the author of the DVD.


The purpose of legislation isn't relevant, only the effect of the legislation. And the effects are the problem; potentially any debugger could be considered a "circumvention tool". Just like scope creep has caused laboratory glassware to be considered illegal "drug paraphernalia" in places.

1201 also has the effect of banning circumvention that does not infringe copyright. Which is supposedly addressed by the weird adhoc Library of Congress exemption system, but only in a very limited set of cases.


Whether the purpose of legislation matters very much depends on a judge's beliefs regarding statutory interpretation. Enforcement of a statute is often all about the purpose of it. That said, I see your point and its a valid one. I'm just not sure I believe getting rid of 1201 will do less harm than good. I guess we'll see how the lawsuit turns out!


You're missing things like (e.g.):

- Tractors that have technical measures to prevent 3rd party repairs or replacement parts. Circumventing those measures is a DMCA violation, even if all you're trying to do is repair a tractor that you own without paying an arm and a leg to the manufacturer for a repair person.

- Printer makers that use technical measures to prevent their printers from using 3rd party inkjet cartridges. It's not my fault that they want to use the "give away the razor, sell the blades" business model.

- Basically any company that wants everything relating to their product to go through them, and to prevent 3rd party companies from creating replacement parts or performing repairs.

The government shouldn't be making laws just to make certain business models viable (that are otherwise not viable). (e.g.) If you can't sell cheap printers without gouging people by selling expensive ink, then charge more for your printers. If printers are too expensive for everyone to have one at home, then so be it. They will do their printing at Kinko's (or the local equivalent).

This works in other industries. Car manufacturers have had a 3rd party parts market for a long time (though they are definitely suckling at the teat of the DMCA and trying to make newer cars as locked down as possible).

Do you really think that the US government should be making laws to shut down the 3rd party inkjet cartridge industry in order to protect HP's consumer printer business? Should the US government pass laws to make it illegal for a farmer to install a non-John Deere part on his John Deere tractor? Is this the kind of thing that the government needs to be doing?


The DRM is not in products that the company own. They sold those products, knowingly, rather than renting them out as a service. Companies should have no right to "protect" lawfully-purchased products against usage by the person who legally bought it.

If they want to sell something and still remain ownership rights, then do what every company in history did before software DRM: rent it out as a service. A car bought, and a car rented, has natural right differences which is being erased by DRM.


>The purpose of the statute isn't to destroy <insert Internet activist claimed right>

What difference does the intended purpose make if it does indeed destroy <insert Internet activist claimed right>?

If that was indeed the purpose of 1201, the the law as written has unintended consequences.

But my feeling is that they knew damn well that they were going to sweep up non commercial tinkerers as well.

These days the line between commercial and non commercial is blurred. With the internet a hacker can publish some circumvention method and software with the same reach as a large company.[1]

[1] I personally see no problem with that. BTW. The law is being used here to prop up outdated, often monopolistic, business models. That's the company's problem, and shouldn't be externalized onto all of society.


This reminds me of SLAPP suits.[1]

Of course not every violation of 1201 will be prosecuted, but the laws are there to intimidate people if their tinkering becomes commerciall bothersome.

[1] https://en.m.wikipedia.org/wiki/Strategic_lawsuit_against_pu...


> As a result, the government stepped in and created 1201 to make it illegal for someone to <A> to <B>.

Doing <B> was already illegal. Therefore, doing <A> in order to <B> was also already illegal.

People are upset that <A> is now illegal, for all purposes, not just doing <B>.

> The purpose of the statute isn't to <X> but is to <Y>. I don't see anything wrong with that.

What's wrong with that is that it also does <X> (even if that isn't the "purpose").


While your points are correct, I think the use of variables actually makes it harder to follow


I'm pretty sure everyone's aware of the stated purpose of the section. It's not like there were a bunch of execs and lobbyists sitting around going "there's too much creativity in the world."

But the intentions of the legislation don't change its consequences.


Oh they very much do. Legislative intent is a major factor that many judges consider when enforcing legislation. Intent often has a very big impact on consequence.


IANAL, but this could cut both ways, couldn't it? If the judge decides the effect is different than the intent, she could either say "the intent is valid so let's ignore the effects" (what you seem to advocate here) or "the effects are not what was intended so until the legislative branch makes a change we'll use the following interpretation in order to make the effects more like the intent". There may be a standard way of deciding between these two alternatives, but I don't know it.


I do not think the author doesn't know that section 1201 was designed to help companies create access control. The author of the blog post is talking about not just the purpose of the law, but also the effect, which he or she believes infringes on the First Amendment.

I'm not a lawyer, but I think that laws with a constitutionally valid purpose are sometimes ruled unconstitutional by the courts when they have unconstitutional effects.

I can't comment on whether I think that will be the case here.


The purpose of me setting this bush alight is not to start a forest fire; it's to cook some marshmallows. I don't see anything wrong with that [even if it does actually start a forest fire].

If a law has unintended consequences of the magnitude that exceeds the supposed beneficial intent of the law, it's a bad law.

If there's no way to write a law without such unintended consequences, it shouldn't exist.

In this case, there's also the additional orthogonal argument that the law violates the First Amendment by prohibiting speech. Even if the law didn't have unintended consequences, this alone is sufficient to justify getting rid of it - if we allow unconstitutional laws because they serve a good purpose, all constitutional protections go out of the window.


Well, sure, that is the intent. Where people disagree is whether it's reasonable to criminalize breaking copy protection, rather than the act of illegally copying and distributing copyrighted content.


The first amendment of the US Constitution states that Congress (later interpreted as the entire federal government) cannot restrict free speech. Congress passed the DMCA, part of which said that you can't tell anyone about how to bypass DRM. Therefore, Congress restricted free speech, which is contrary to established law.

Do you see the problem?

Of course, the question is does this invalidate the entire DMCA or only that specific part?


Thanks for giving some context, and sorry to see you blanked out for providing a viable and nuanced rebuttal to what the EFF is doing. They are engaging in FUD on this one. It's got questionable merit. Thankfully, the legal system will sort this out and I presume in a fashion I find agreeable, because the EFF's position is extreme and untenable.


I think this is an important topic that needs to be addressed, but suing the government is doomed to fail. The federal government has sovereign immunity, and you can't sue them unless they decide that you can. They usually decide that you can't. Most laws aren't changed in the court unless someone is criminally prosecuted. Then your appeal case can move through the higher levels of the court until it reaches a level that the law can be struck down completely, or what usually happens is a legal precedent is set regarding a specific portion of the law.

So unless Bunnie has been prosecuted for breaking the DMCA, this is likely going to be an ineffective move.

If you want to change a law without breaking it first, the right way to go about it is petitioning Congress, the lawmaking part of the government.


Not necessarily. It can influence the change in legislation or enforcement thereof. Case in point: DJB vs. United States

https://en.wikipedia.org/wiki/Bernstein_v._United_States


You skipped the part where you form a lobby group with deep pockets before petitioning congress. I'm skeptical that petitioning will be any more effective than a lawsuit without that step.


Let's take a quick look at the understanding of Copyright law that this litigant seems to possess:

>Before Section 1201, the ownership of ideas was tempered by constitutional protections. Under this law, we had the right to tinker with gadgets that we bought, we had the right to record TV shows on our VCRs, and we had the right to remix songs.

Wait, before the DMCA "we" had the right to remix songs? Okay so this case is going nowhere because the person filing really doesn't quite understand the mechanics of basic Copyright. Just kind of throwing out the concept of "remixes" does a dis-service for the real nuances of how the rights/permissions/compensation system works, has been tested in court, etc.

The subject of ownership and repair is extremely complex and this lawsuit is frivolous when the matter is being actively tested by John Deere and various farmers. Maybe this person could assist in funding that challenge to 1201. There are some glaring flaws in this whole approach, from what I understand about Copyright law and the DMCA.

Also, I don't know why the EFF continues to push erroneous information regarding how Copyright, the DMCA, and Fair Use actually work:

>This ban applies even where people want to make noninfringing fair uses of the materials they are accessing.

Fair Use always trumps the DMCA; the nature of Fair Use, however, is subject to four factor tests, if an IP owner should feel compelled to assert the Fair Use was not in the spirit and letter of the law. Sometimes it seems like the EFF and TechDirt try to claim things that aren't true just to make a point. It's something that bothers me routinely in this subject in particular.


> Fair Use always trumps the DMCA

This is not necessarily the case.

> However, in a number of cases involving DVD decryption courts have held that there is no fair use defense in circumvention cases. In Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 322 (S.D.N.Y. 2000), the court stated that "[i]f Congress had meant the fair use defense to apply to such actions, it would have said so."[5]

https://en.wikipedia.org/wiki/Anti-circumvention#Fair_Use_an...


Okay, that's a reasonable point. I recall that issue too, but forgot they used the DMCA as the lock-up point, re: copyright. I think the scope is extremely limited in that case though, which is an excellent point of contention (because I don't agree with DMCA > Fair Use in principle).


This case is well-planned activism. Bunnie and EFF team certainly know more about free speech and copyright than you or I do. Perhaps you don't likr the press release, but that necessarily simplifies and reduces the detailed arguments they will have to brief before the court.


We'll see about that. We can revisit this case when it goes further down the line, because I study copyright extensively and follow these cases often. It's not that I don't like the press release, it's that it contains factual errors and if you want to believe them, then that's not constructive.


Your entire last paragraph is the opposite of reality. So you should stop accusing people of factual errors.


You're selecting such a limited example that is so far out from what the implication of destroying DRM is that while I've made an error, I did so in a fundamentally honest fashion, which is the opposite of what the EFF is doing. They are lying about remix culture to engender support. So, which error is more egregious in the grand scheme of things?


The major objection to 1201 is that it legally precludes what would be fair use in an unprotected work. Breaking HDCP, for instance, is still illegal for a use that would pass a four factors test.

Do you have a link on the John Deere suit(s) you mentioned? That's one I'd be interested in following.


i think it relates to this:

[1] http://www.wired.com/2015/04/dmca-ownership-john-deere

[2]https://theamericangenius.com/business-news/farmers-cant-leg...

it seems to concern the idea, as mentioned above, of ownership vs a permanent license of the goods purchased or in their minds.. leased?


I've read the wired piece; GP said 'is being actively tested by John Deere and various farmers', implying that there were other lawsuits.




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