Now Let Him Enforce It

Before rejoining the 21st century, I want to take y’all on a little detour to the 19th.

Specifically, I want to talk about one of the sorriest, most evil chapters in Georgian history, the forcible removal of the Cherokee people from their land in what’s become known as the “Trail of Tears.”

The Cherokee were not savages. By 1830 they had a government, a written language, schools, and churches. But President Andrew Jackson, acting on behalf of the state of Georgia, wanted their land, and demanded their removal. When the Supreme Court ruled in Worcester vs. Georgia that he had no right to do this, he is said to have replied, “John Marshall has made his decision, now let him enforce it.”

So I’m now going to be (I think he’ll agree) very kind and compare U.S. District Judge Jed S. Rakoff to the great Chief Justice John Marshall. Rakoff is right on the law, as amended by Congress in the 1998 Digital Millennium Copyright Act. Any technology that undermines copyright, any system that allows the circumvention of copyright, is illegal technology and can legally be crushed.

Had the DMCA existed in 1984, the VCR would likely be illegal. A VCR, after all, allows anyone to copy movies and TV shows, which are subject to copyright, and watch them for free. In fact, Universal Studios (the same company that sued sued Sony to stop distribution of its Betamax recorders, but they lost.

Universal made the same arguments then that it makes now. If you let this technology loose everyone will steal our stuff. The Betamax case was lost, but the law has since changed.

The problem is how will the decision – and the similar DECSS decision – be enforced? OK, you can destroy and Napster. You can declare software illegal, and even enjoin links to it. But when someone sings the code, or puts it on a T-shirt, or states that it can be found on a certain search engine, can you put them in jail?

Judge Rakoff seeks to drive the music audience underground, just as Judge Marilyn Hall Patel did in her Napster decision. How can these decisions be enforced?

Can copies of Gnutella and all its clones, like N-Tella, Bodetella, Gnotella, Gnewtella, and Toadnode, be forcibly removed from servers and clients? Can the File Transfer Protocol be unwritten? Can packets be examined on the Internet to see if they’re “illegal” technologies, then traced to their sources and the users arrested? No, of course they can’t.

All the plaintiffs and the courts have done is to remove any form of “adult supervision” and any reasonable business model from the sharing of music and video files. I submit that’s not good news for those of us who believe in the enforcement of copyright law. I submit that’s bad news.

By driving millions of people underground and out of the marketplace, industry and the courts have created untold grief for themselves. Jed Rakoff has made his decision. Now let him enforce it.

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