[NTLUG:Discuss] [ms.g@noitacude.com: [sb1116] ALERT: Texas "super DMCA" movingthrough the legislature]

[Darin W. Smith]

On Thu, 22 May 2003 15:24:13 -0500, Allen Flick 
<AllenFlick at UTDallasAlumni.com> wrote:

> The bill creates new crimes for:
> 1.Obtaining a communication service without authorization from or payment 
> to the service provider.
> 2.Connecting a device to a communications system with intent to defraud.
> 3.Modifying a communication device provided by the communication service 
> provider with intent to defraud.
> 4.Possessing a communication device or unauthorized access device with 
> intent to defraud.
> 5.Preparation or publication of "plans or instructions" for such devices.
>
> Other than the possibility of redundancy, I don't really see a problem 
> with these 5
> items.  If you were the ISP, you'd want to know that people "out there" 
> can't steal
> your service without paying for it.  I think the phrase "with intent to 
> defraud" is key
> here.
>
> Responses ?

#1:
Define "communication service".  This is an overly broad term.  Such a term 
could be construed to mean almost anything...such that an ISP could 
theoretically charge you seperate line-items for ability to use any 
protocol they wanted to charge seperate for:
  Instant Messaging
  FTP
  HTTP
  SMTP
  SSH
etc., etc., etc.

Think it can't happen?  Everyone's phone line is connected to a card that 
supports Caller ID, Call Waiting, Cancel Call Waiting, etc.  You have to 
pay for those "extra services".  If you get Call Waiting, as anyone with a 
modem knows, you have to pay an extra $0.50 a month for "Cancel Call 
Waiting."

No way I'd go along with this if the language is that broad.

How does the ordinary subscriber demonstrate non-intent to defraud.  Let's 
say I think it would be fun and educational to figure out how some 
scambling scheme worked, and built a descrambler--never intending to use it 
unless I actually subscribed to the services--but along the way "prepared" 
"plans or instructions" for said device.  If the BATF or whoever raids my 
house and sees such plans, you can bet they will assert that I was 
developing something in violation of this bill.  How do you prove intent?

Once again, I *hate* the term "with intent to defraud" because you *cannot* 
prove *intent*.  It is your word against theirs.  You can claim that you 
never gave away or sold the plans, and you can show that you are paying for 
the services, but it will still be the word of megabucks corporation 
against you.

"intent" is 1984...or Minority Report, whatever.  Breaking a law due to 
intent, not due to action, is a very scary concept to me.

Also, define "defraud."  You can bet the cable-telecom industry will define 
it as broadly as possible.  It reminds me of some IP contracts I've seen 
with companies (actually pretty standard) that say if you want to start a 
business--even a non-competing business--using the skills they pay you for, 
then you have to submit your plans to be approved, because they might be 
interested in that business.  Well, if it looks profitable, you can bet 
they will say "we are interested in this business."  "Defraud" in this 
case, must be specifically defined (maybe it is, I haven't read the whole 
bill) to only encompass areas of current significant profit for the 
provider...*not* "potential profit" or any other silly thing their lawyers 
will come up with to squeeze more money out of you.

I personally find all of those very broadly written...and in this country, 
broadly-written = granting companies power to screw you, the consumer to 
their heart's content.

You say: "If you were the ISP, you'd want to know that people "out there" 
can't steal your service without paying for it."

My answer: absolutely.  But they must *commit the actual theft* before 
being made to pay for it...not have their rights limited from the get-go.  
Limiting rights for the masses and broadening them for the privelidged is 
pure socialist "we know how to run your life better than you do--deal with 
it" thinking.  It is extremely limiting to the free market as a whole.

-- 
D!
Darin W. Smith
AIM: JediGrover