On Monday, September 17, 2001, at 04:06  PM, Cees de Groot wrote:

> Noel J. Bergman <noel at devtech.com> said:
>> Personally, I'm not convinced that it is entirely possible to give both
>> sides what they want, and I would err on the side of the consumer.
>
> Personally, I would err so far as to do away with "intellectual 
> property"
> alltogether.

Neither error is necessary -- a careful BALANCING of concerns is called 
for.  From the Constitutional mandate through the present day, 
intellectual property law has always been about the balancing of a 
protective interest of the rights of a first creator against the 
interest of society to have clear and sound notice of what is owned, and 
the rights of those who would improve or further such initial 
creations.  I recently filed an Amicus Curiae brief before the United 
States Supreme Court in an unrelated (to this thread) patent matter.

	www.ieeeusa.org

But the same issue arose there -- the significance and import of 
balancing the interests of an inventor/creator with the interests of 
society.

At any rate, the primary difficulty with DMCA and worse, SCCCA, is that 
they strike harshly at the very heart of a carefully balanced scheme for 
intellectual property law, wildly tilting the balance to one side.  
Neither DMCA nor SCCCA were ncessary to achieve the goals of the 
Copyright system, and each grievously harmed it -- by giving effectively 
patent-like protections to unpatentable and unexamined subject matter 
for an indefinite term.

In short, NEITHER SIDE should get what they want (as in the case I 
briefed above) -- IP law isn't for giving either side what they want, 
but rather to balance the interest for each -- sufficiently to give 
incentive to create and incentive to propel prior creations to greater 
heights, disclosing everything, and all for the benefit of society as a 
whole.

Its not hard to accomplish, actually -- we've been successful as a 
nation in balancing those interests adequately for 200 years despite 
many radical changes in the nature of technology and copyright subject 
matter.  Only recently (and not because of the "innovation" of digital 
information) has this become a problem -- precisely because Congress got 
involved.

Not too long ago, I found myself iconoclastically asserting that there 
is no such thing as "computer law," but rather a collection of other 
substantive bodies of law reasonably applicable to computer use.  
Contrary to the calls by my colleagues to update the law, I felt that 
the common law and existing statutory foundation was more than 
adequate.  Indeed, I cautioned against wishing for change, because 
changes by a legislature in view of the interests of those most likely 
to lobby it will at best unbalance and perhaps destroy the delicate 
fabric of sound ip policy.

Now, undoubtedly, there is computer law -- subject matter and statutes 
solely relating to using computers on the internet.  Still, I can't 
think of anything that the legislature adopted to date that was an 
improvement.