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Disclosure up top: I work for the EFF on copyright activism, and submitted this article here, but didn't write it. Just wanted to say that, as others have note

Disclosure up top: I work for the EFF on copyright activism, and submitted this article here, but didn't write it. Just wanted to say that, as others have noted, the excerpted words come from a 71 page reply, but I wouldn't say it was anything like picking four unrepresentative words. Take, for example, this longer paragraph from the filing: > Hacking video game access controls facilitates piracy and therefore undermines the core anti-piracy purposes of Section 1201. As explained above, hacking the video game access controls requires, by definition, hacking of the video game console or similar device in order to play the hacked video game. Once the access controls for the video game console are hacked, regardless of the purported purpose or intent of the hacker, any content, including pirated games, can be played on a video game console. > What's more, console hackers may distribute their console-hacking solution to gamers that have no intention of using it for the purposes stated in the proposed exemption. The risk of piracy is even greater on personal computers and similar devices that do not utilize device-based access controls to prevent the installation of unauthorized software. The individual can use consoles to make and store infringing copies of copyrighted games and other content and to distribute these unlawful copies online to a large audience. You can't really go line-by-line through a 71-page comment, but it's fair to say that that sort of rhetoric—conflating "hacking" with piracy with illegality, regardless of context—runs throughout, and is what my colleague highlighted here.

anigbrowl 12y ago
Sorry, I think that's really disingenuous. Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals, and even the short excerpts that you quote above do not disregard context, but point out the existence of a wider context. I don't want to get into a long argument about it, but from your tone I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.
- ploxiln 12y ago
  I think the ESA has a "legitimate interest in preventing piracy" ... and I also think that shouldn't prevent anyone from doing anything they like with any electronic devices or digital bits they acquired legally. The sticking point is the DMCA anti-circumvention provisions. We're talking about exemptions from these provisions. These provisions should not exist in the first place. "hackers" aka smart people who use computers should absolutely be allowed to do whatever they want to make their own purchased games work, even if the ESA member companies are working against them. Let ESA member companies do stupid DRM stuff which makes their products worse for paying customers. Let paying customers do whatever they want with what they bought, including making it work even when it's not supposed to work anymore. (EDIT: I should probably mention the rather undermined first-sale doctrine. You obviously should be able to buy or be given an old game from someone else who bought it, and make it work)
  - tptacek 11y ago
    This is why EFF had no need to misrepresent ESA's argument: their entire audience believes that ESA's constituents don't have the right to enforce licenses that restrict end-user rights to modify game titles. The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.
    - contemptuous 11y ago
      >The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Is there basis in law for the opposite? If so, could you cite that? To a laymen I'm forced to compare this to what I know - namely that there are very few, if any, purchases I could make of _physical goods_ with legal restrictions on me taking them apart, physically.
      - obstinate 11y ago
        EULAs are routinely enforced. Is that what you're asking? Some examples, by no means exhaustive, can be found on this page: http://en.wikipedia.org/wiki/End-user_license_agreement#Enforceability_of_EULAs_in_the_United_States http://en.wikipedia.org/wiki/End-user_license_agreement#Enfo...
    - darkarmani 11y ago
      > Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. So aren't you arguing for an exemption in the DMCA since contract law already covers this? What is the need to prevent this using the DMCA if it can be prevented on a case by case basis using contracts?
- thisisparker 12y ago
  > I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy. Well, there's legitimate and there's legitimate. We're not discussing here whether they should try to prevent piracy, it's whether they should block efforts to get a small temporary exemption related to non-infringing uses of abandoned software put in place for the next three years. It's frustrating to me that ESA and some of the other respondents here try to bootstrap from a copyright purpose to non-copyright ones. Nothing in this exemption would render infringement legal; if granted, it would just remove legal uncertainty from circumvention for limited non-infringing uses. In that sense, the legitimacy of the underlying copyright concern is kind of irrelevant.
- guelo 12y ago
  You have been commenting righteously about how the EFF misrepresents the ESA's position but you haven't stated what the misrepresentation is besides telling people to read the 71 page paper and that "the ESA has a legitimate interest in preventing piracy", which is the same thing the EFF is saying: the ESA is conflating hacking old games with piracy.
- themartorana 11y ago
  "...conflating locksmiths with burglars..." I think that's exactly what is happening. This is often used in politics, and is akin to "I'm just saying..." "He may or may not have criminal intentions, I don't know, I'm just saying..." It's intentionally drawing loose correlations and leaving the equivalence up to the reader. Once the suggestion is made, however, it's hard to dissociate. I agree with one of the ancestor posters - the ESA has no dog in this fight other than fearing that allowing any hacking is a slippery slope, and it is in their favor to make sure "hacking" is never seen in a positive light.
  - slowmovintarget 11y ago
    I'd have to disagree based on reading the ESA's position statement. Essentially they point out that in order to circumvent the restrictions on a particular video game, one must circumvent the restrictions on the video game console, which is covered by a different section of the law. Creating and distributing kits for the circumvention of the console restrictions has a drastically broader application than merely playing abandoned games. Given that such an exception would essentially gut the law, the ESA most certainly has a dog in the hunt.
- Natsu 11y ago
  > Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals I have to disagree with you here. Both in this filing and in their broader campaigns, they've done everything they can to conflate copyright infringement with hacking/viruses/etc. and many of their references are irrelevant or unsupported, they just want to put the words piracy and hacking together at every opportunity. Which is itself disingenuous, as ESA member Sony is itself infamous for using malicious hacking in its attempt to stop copyright infringement (e.g. the Sony rootkit). Although I will admit that I'm maligning them given the chance. I haven't bought anything from Sony since that very day.
  - pandaman 11y ago
    Apropos of being disingenuous. Sony BMG (now Sony Music Entertainment), which is infamous for using malicious hacking is not and have never been an ESA member. The ESA member is Sony Computer Entertainment. And no, it's not the same org. Both are subsidiaries of the same holding company so they are as related as HBO and Time Warner Cable or GEICO and See's Candies.
    - Natsu 11y ago
      I didn't realize that having a holding corporation absolved you from shared moral culpability the way it does for shared legal culpability.
      - pandaman 11y ago
        I am sorry, I don't follow. Two different companies did two different things (installing rootkit and being an ESA memeber), you seem to believe they are the same company. I have corrected you. What does moral culpability have to do with any of this?
        Natsu 11y ago
        Actually you've been talking to Natus, Inc. and the person you wanted to correct is Natsu, LLC. Because we're completely different imaginary entities that merely happen to share an account, you're actually the one who is confused here. Hopefully this clarifies things for you. On a more serious note, if I can't hold the owners responsible for their actions via their own subsidiaries, then what? This is why I find them to both be 'Sony' enough to share blame and I don't particularly care for it when people try to play shell games with corporate identities. The particulars of their corporate governance are simply not relevant to what I was saying.
- smsm42 11y ago
  Using your analogy, ESA wants to ban practicing lockpicking skills in the privacy of your home because once you learned it, you could use it to commit burglary. I think EFF is completely correct to oppose it and completely justified to expose guilt by association and slippery slope fallacies in ESA's argument. ESA has interest in preventing piracy, but that does not give them any more rights. I have interest in acquiring a million dollars, but it would be a poor argument for me to justify robbing a bank with that interest. In the same way, the fact that ESA is interested in something does not constitute good argument to prevent harmless activities having nothing to do with piracy - because there are much better and less rights-infringing ways to further the same interest.
tptacek 12y ago
You're quoting individual grafs from a 4-page executive summary. The entire rest of the document goes into excruciating detail about the myriad of objections ESA has to the exemption proposal. You can, in fact, go line-by-line through a 71-page comment. When you purport to summarize it, you are obliged to capture it in its entirety, or else disclaim the fact that you're responding only to a fragment. EFF failed to do that here. 9 minutes later The ESA document isn't 71 pages long. It's 29 pages, plus exhibits. I read all 29, and mined out all the arguments I could find (excuse the typos, I tried to go as fast as I could): sweeping scope burden is on exemption asker no concept of “abandoned game” in copyright law exempts modifications on non-gaming platforms applies to games other than those eft claims it does turning off online services doesn’t abandon game access controls used for more than just enabling matchmaking implicates controls fundamental to the platform like code signing copyright owner entitled to benefits/revenue from online services fails to meet burden that “most use would be noninfinging” online services licensed separately from game, so modifying game itself infringes six month time duration has no basis in law exemption is broader than fair use (preservation and study) significant commercial non transformative use involves reproduction/distribution of copyrighted game assets amount of code implicated is sweeping and unreasonable, unlike book excerpt has the effect of circulating tools also used for piracy, which harms market too many market alternatives to support argument of irreparable harm to consumers, including 1p games copyright holders already doing preservation work with museums consumer harm proposed by eff is hypothetical games aren’t abandoned when they have thriving communities, so benefits are minimal librarian is obligated by congress to consider adverse effect of exemptions eff identifies no actual nonprofit or archival project that would benefit online services have no impact on criticism comment or news reporting creates confusion among users about what is or isn’t lawful, thus increasing piracy impacts not just copyright but also brands and trademarks of game publishers --- Do you honestly think EFF's summary of these arguments was honest? This took me 9 minutes to read and type up. EFF didn't have 9 extra minutes to get it right?
- thisisparker 11y ago
  If there are words in the original post that give the impression that we're providing an exhaustive summary, let me know and I'll see how we can clarify. One of the arguments ESA made seems to resonate with people. I don't think it's at all dishonest to point that out. We will address the comments more completely with the response filing. In the meantime, I'm glad your 9 minute list exists in case people prefer it to the original.

anigbrowl 12y ago

Sorry, I think that's really disingenuous. Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals, and even the short excerpts that you quote above do not disregard context, but point out the existence of a wider context. I don't want to get into a long argument about it, but from your tone I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy.

ploxiln 12y ago
I think the ESA has a "legitimate interest in preventing piracy" ... and I also think that shouldn't prevent anyone from doing anything they like with any electronic devices or digital bits they acquired legally. The sticking point is the DMCA anti-circumvention provisions. We're talking about exemptions from these provisions. These provisions should not exist in the first place. "hackers" aka smart people who use computers should absolutely be allowed to do whatever they want to make their own purchased games work, even if the ESA member companies are working against them. Let ESA member companies do stupid DRM stuff which makes their products worse for paying customers. Let paying customers do whatever they want with what they bought, including making it work even when it's not supposed to work anymore. (EDIT: I should probably mention the rather undermined first-sale doctrine. You obviously should be able to buy or be given an old game from someone else who bought it, and make it work)
- tptacek 11y ago
  This is why EFF had no need to misrepresent ESA's argument: their entire audience believes that ESA's constituents don't have the right to enforce licenses that restrict end-user rights to modify game titles. The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Promises agreed to in contracts that restrict your ability to modify games are enforceable. Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. You can want the law to be otherwise (I might too!), but that's not germane to the actual situation EFF faces, which is a legal argument with ESA in the venue of the Library of Congress.
  - contemptuous 11y ago
    >The fact is that the idea that you can "do anything you like with any electronic devices or digital bits you acquire legally" has no current basis in US law. Is there basis in law for the opposite? If so, could you cite that? To a laymen I'm forced to compare this to what I know - namely that there are very few, if any, purchases I could make of _physical goods_ with legal restrictions on me taking them apart, physically.
    - obstinate 11y ago
      EULAs are routinely enforced. Is that what you're asking? Some examples, by no means exhaustive, can be found on this page: http://en.wikipedia.org/wiki/End-user_license_agreement#Enforceability_of_EULAs_in_the_United_States http://en.wikipedia.org/wiki/End-user_license_agreement#Enfo...
  - darkarmani 11y ago
    > Generally, the manner in which game publishers and console vendors secure those promises are recognized by the law. So aren't you arguing for an exemption in the DMCA since contract law already covers this? What is the need to prevent this using the DMCA if it can be prevented on a case by case basis using contracts?
thisisparker 12y ago
> I almost get the impression that you don't think the ESA has a legitimate interest in preventing piracy. Well, there's legitimate and there's legitimate. We're not discussing here whether they should try to prevent piracy, it's whether they should block efforts to get a small temporary exemption related to non-infringing uses of abandoned software put in place for the next three years. It's frustrating to me that ESA and some of the other respondents here try to bootstrap from a copyright purpose to non-copyright ones. Nothing in this exemption would render infringement legal; if granted, it would just remove legal uncertainty from circumvention for limited non-infringing uses. In that sense, the legitimacy of the underlying copyright concern is kind of irrelevant.
guelo 12y ago
You have been commenting righteously about how the EFF misrepresents the ESA's position but you haven't stated what the misrepresentation is besides telling people to read the 71 page paper and that "the ESA has a legitimate interest in preventing piracy", which is the same thing the EFF is saying: the ESA is conflating hacking old games with piracy.
themartorana 11y ago
"...conflating locksmiths with burglars..." I think that's exactly what is happening. This is often used in politics, and is akin to "I'm just saying..." "He may or may not have criminal intentions, I don't know, I'm just saying..." It's intentionally drawing loose correlations and leaving the equivalence up to the reader. Once the suggestion is made, however, it's hard to dissociate. I agree with one of the ancestor posters - the ESA has no dog in this fight other than fearing that allowing any hacking is a slippery slope, and it is in their favor to make sure "hacking" is never seen in a positive light.
- slowmovintarget 11y ago
  I'd have to disagree based on reading the ESA's position statement. Essentially they point out that in order to circumvent the restrictions on a particular video game, one must circumvent the restrictions on the video game console, which is covered by a different section of the law. Creating and distributing kits for the circumvention of the console restrictions has a drastically broader application than merely playing abandoned games. Given that such an exception would essentially gut the law, the ESA most certainly has a dog in the hunt.
Natsu 11y ago
> Observing that lockpicking can facilitate burglary is not equivalent to conflating locksmiths with criminals I have to disagree with you here. Both in this filing and in their broader campaigns, they've done everything they can to conflate copyright infringement with hacking/viruses/etc. and many of their references are irrelevant or unsupported, they just want to put the words piracy and hacking together at every opportunity. Which is itself disingenuous, as ESA member Sony is itself infamous for using malicious hacking in its attempt to stop copyright infringement (e.g. the Sony rootkit). Although I will admit that I'm maligning them given the chance. I haven't bought anything from Sony since that very day.
- pandaman 11y ago
  Apropos of being disingenuous. Sony BMG (now Sony Music Entertainment), which is infamous for using malicious hacking is not and have never been an ESA member. The ESA member is Sony Computer Entertainment. And no, it's not the same org. Both are subsidiaries of the same holding company so they are as related as HBO and Time Warner Cable or GEICO and See's Candies.
  - Natsu 11y ago
    I didn't realize that having a holding corporation absolved you from shared moral culpability the way it does for shared legal culpability.
    - pandaman 11y ago
      I am sorry, I don't follow. Two different companies did two different things (installing rootkit and being an ESA memeber), you seem to believe they are the same company. I have corrected you. What does moral culpability have to do with any of this?
      - Natsu 11y ago
        Actually you've been talking to Natus, Inc. and the person you wanted to correct is Natsu, LLC. Because we're completely different imaginary entities that merely happen to share an account, you're actually the one who is confused here. Hopefully this clarifies things for you. On a more serious note, if I can't hold the owners responsible for their actions via their own subsidiaries, then what? This is why I find them to both be 'Sony' enough to share blame and I don't particularly care for it when people try to play shell games with corporate identities. The particulars of their corporate governance are simply not relevant to what I was saying.
smsm42 11y ago
Using your analogy, ESA wants to ban practicing lockpicking skills in the privacy of your home because once you learned it, you could use it to commit burglary. I think EFF is completely correct to oppose it and completely justified to expose guilt by association and slippery slope fallacies in ESA's argument. ESA has interest in preventing piracy, but that does not give them any more rights. I have interest in acquiring a million dollars, but it would be a poor argument for me to justify robbing a bank with that interest. In the same way, the fact that ESA is interested in something does not constitute good argument to prevent harmless activities having nothing to do with piracy - because there are much better and less rights-infringing ways to further the same interest.

tptacek 12y ago

You're quoting individual grafs from a 4-page executive summary. The entire rest of the document goes into excruciating detail about the myriad of objections ESA has to the exemption proposal. You can, in fact, go line-by-line through a 71-page comment. When you purport to summarize it, you are obliged to capture it in its entirety, or else disclaim the fact that you're responding only to a fragment. EFF failed to do that here. 9 minutes later The ESA document isn't 71 pages long. It's 29 pages, plus exhibits. I read all 29, and mined out all the arguments I could find (excuse the typos, I tried to go as fast as I could): sweeping scope burden is on exemption asker no concept of “abandoned game” in copyright law exempts modifications on non-gaming platforms applies to games other than those eft claims it does turning off online services doesn’t abandon game access controls used for more than just enabling matchmaking implicates controls fundamental to the platform like code signing copyright owner entitled to benefits/revenue from online services fails to meet burden that “most use would be noninfinging” online services licensed separately from game, so modifying game itself infringes six month time duration has no basis in law exemption is broader than fair use (preservation and study) significant commercial non transformative use involves reproduction/distribution of copyrighted game assets amount of code implicated is sweeping and unreasonable, unlike book excerpt has the effect of circulating tools also used for piracy, which harms market too many market alternatives to support argument of irreparable harm to consumers, including 1p games copyright holders already doing preservation work with museums consumer harm proposed by eff is hypothetical games aren’t abandoned when they have thriving communities, so benefits are minimal librarian is obligated by congress to consider adverse effect of exemptions eff identifies no actual nonprofit or archival project that would benefit online services have no impact on criticism comment or news reporting creates confusion among users about what is or isn’t lawful, thus increasing piracy impacts not just copyright but also brands and trademarks of game publishers --- Do you honestly think EFF's summary of these arguments was honest? This took me 9 minutes to read and type up. EFF didn't have 9 extra minutes to get it right?

thisisparker 11y ago
If there are words in the original post that give the impression that we're providing an exhaustive summary, let me know and I'll see how we can clarify. One of the arguments ESA made seems to resonate with people. I don't think it's at all dishonest to point that out. We will address the comments more completely with the response filing. In the meantime, I'm glad your 9 minute list exists in case people prefer it to the original.