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I have read part of the ESA brief. I have skimmed through the rest. If I was going to be charitable to the EFF when reading their article here, I would say that

I have read part of the ESA brief. I have skimmed through the rest. If I was going to be charitable to the EFF when reading their article here, I would say that there is so much ridiculous bullshit in the ESA brief that the person who wrote the EFF article probably just picked the most egregious example they could find before their eyes glazed over (or bled) and then focused on that. Yes, the EFF has failed to encapsulate the ESA position well, but frankly the ESA position is based largely on specious logic and willful ignorance. To the point that I'm not sure that it's possible to encapsulate their position well, for much the same reason it can be difficult to encapsulate the position of an obstinate, spoilt child. They are ignoring important facts in places. Most places. They are taking conclusions predicated on heavily biased samples of irrelevant minutiae, and presenting them as sweeping indictments of the proposed exemption. They are, in short, arguing in an incredibly deceitful, deceptive way, even by video game industry lawyer standards. Maybe we should demand more from the EFF, but I certainly would not want the job of having to take this sort of nonsense seriously. At any rate, if the EFF article gave me a bad impression of the ESA, actually reading the ESA brief did not improve it.

tptacek 12y ago
The whole concept of a legal brief is that you devise every argument you possibly can and throw them all at the wall/venue to see what sticks. These are documents written by lawyers to advance legal arguments; they aren't position papers. It is a little unfair to ding them for following the protocols of the law. Of course, it is deeply unfair of EFF to evaluate ESA's brief as if it was a position paper, and in the process caricature and mis-summarize it. Once again: I don't want to get boxed into sticking up for ESA.
- deciplex 12y ago
  I've read enough of your other replies ITT to know you aren't exactly sticking up for the ESA, but rather playing your usual devil's advocate/contrarian role :-) You're not getting boxed in, at least not by me. Let's say the ESA knows of some solid reasoning which will support its point for most reasonable people. If it does, it is certainly not presenting them in this legal brief. In that case, something is very wrong with our legal system, because then things like facts and coherent logic have a value of about ε, and that's harmful. And if that's the case, then you are right that it is not exactly fair to hold the ESA to what they've put down here, as though it's a position paper. But if that's what's happening, then to make that excuse for them (especially when they have not, as far as I know, written down the 'real argument' anywhere else) feels an awful lot like supporting a broken legal system, which I don't want to do. I did think of your point as I was typing up my earlier response, however I decided I don't care. A legal brief and a position paper are not the same thing, but they should be correlated. And by 'correlated' I don't just mean that they share the same conclusion - they should be based on roughly the same reasoning. I know that you're sort of just supposed to use whatever tactics you can to win, and I recognize there is some value to having a system where the goal is to win rather than arrive at the truth. But if that system encourages twisting the facts to the point that you're basically just lying, then it goes too far. And I'm not going to encourage that by making the excuse "oh well they're lawyers so what did you expect". I demand better. For what it's worth, while I do think our legal system has a great many problems, I don't think it is quite so bad as to support this hypothesis. I think the ESA has presented a poor argument because their position is poorly supported. I think they have twisted the facts and omitted other ones because they know this. I believe they are using these deceitful and deceptive tactics not because they are trying to support a reasonable cause within an unreasonable system, but because they trying to support an unreasonable cause within a framework that is, for all its faults, still sometimes capable for recognizing such bullshit for what it is.

tptacek 12y ago

The whole concept of a legal brief is that you devise every argument you possibly can and throw them all at the wall/venue to see what sticks. These are documents written by lawyers to advance legal arguments; they aren't position papers. It is a little unfair to ding them for following the protocols of the law. Of course, it is deeply unfair of EFF to evaluate ESA's brief as if it was a position paper, and in the process caricature and mis-summarize it. Once again: I don't want to get boxed into sticking up for ESA.

deciplex 12y ago
I've read enough of your other replies ITT to know you aren't exactly sticking up for the ESA, but rather playing your usual devil's advocate/contrarian role :-) You're not getting boxed in, at least not by me. Let's say the ESA knows of some solid reasoning which will support its point for most reasonable people. If it does, it is certainly not presenting them in this legal brief. In that case, something is very wrong with our legal system, because then things like facts and coherent logic have a value of about ε, and that's harmful. And if that's the case, then you are right that it is not exactly fair to hold the ESA to what they've put down here, as though it's a position paper. But if that's what's happening, then to make that excuse for them (especially when they have not, as far as I know, written down the 'real argument' anywhere else) feels an awful lot like supporting a broken legal system, which I don't want to do. I did think of your point as I was typing up my earlier response, however I decided I don't care. A legal brief and a position paper are not the same thing, but they should be correlated. And by 'correlated' I don't just mean that they share the same conclusion - they should be based on roughly the same reasoning. I know that you're sort of just supposed to use whatever tactics you can to win, and I recognize there is some value to having a system where the goal is to win rather than arrive at the truth. But if that system encourages twisting the facts to the point that you're basically just lying, then it goes too far. And I'm not going to encourage that by making the excuse "oh well they're lawyers so what did you expect". I demand better. For what it's worth, while I do think our legal system has a great many problems, I don't think it is quite so bad as to support this hypothesis. I think the ESA has presented a poor argument because their position is poorly supported. I think they have twisted the facts and omitted other ones because they know this. I believe they are using these deceitful and deceptive tactics not because they are trying to support a reasonable cause within an unreasonable system, but because they trying to support an unreasonable cause within a framework that is, for all its faults, still sometimes capable for recognizing such bullshit for what it is.