Comment by nkurz | Hacker News Reader

Comment by nkurz | Hacker News Reader

I came in agreeing with all the conclusions of this piece, and after reading it still agree with them, but I find myself less trusting of the EFF than I was before reading it. Is there a short descriptive term for "alienating your allies by obfuscating the details in an attempt to make a stronger case than the evidence actually supports"?

Let me focus on a specific example that bothered me: "It is obviously not a copyright infringement to go into a store in (say) New Delhi and buy a DVD and bring it home to (say) Topeka. The rightsholder made their movie, sold it to the retailer, and you paid the retailer the asking price. This is the opposite of copyright infringement."

A fine example, but why the rhetorical insistence on "obviously"? The author is an expert in this area, and almost certainly knows more about the details of US copyright law than I do. But this means he also knows that the legal situation is not nearly as clear cut as the word "obviously" would suggest.

First, he knows that the US Supreme Court had a recent 6-3 decision regarding this: https://www.wired.com/2013/03/scotus-first-sale-decision/. Yes, it was decided in the direction he and I both favor, but I refuse to accept that the subject of a recent split decision in the Supreme Court can fairly be defined as "obvious".

Secondly, the author also knows that the legality of the importation of copyrighted material depends on who is doing the importing, the number of copies imported, and the purpose of the importing: https://www.copyright.gov/title17/92chap6.html. So while the current law does allow an individual to legally bring back a single copy of a work for personal use, it does not currently allow them to bring back an extra copy to give as a gift. Why not? Because this very similar action is still considered to infringe on the copyright holder's exclusive right of distribution.

It would be fine to say that it "should be obvious" to import copyrighted items, or that "one would hope it would be obvious", but it's lying to claim that it is simply "obvious". This strikes me as a clear indication that the author is willing to mislead his readers when he feels it furthers his goals. This makes me distrust his characterization of all the behind the scenes decisions that I can't verify.

What's the thought process behind this? Am I misinterpreting?

OBVIOUSLY, if you aren't copying something AT ALL, then you can't be infringing on copyright!

I mean, okay, there's bizarro legal arguments, but their use of "obviously" is as simple as saying "it doesn't need to be stated that lending a physical book to a friend does not involve copying the book".

The fact that first-sale stuff and the DMCA itself and all sorts of weird legal issues (e.g. about plagiarism) are tied into copyright law doesn't mean that this stuff is sensible. The "obvious" part is that the core concept of copyright has, in a logical intellectual (not necessarily legal) fashion NOTHING to do with playing the same disc on two different continents. It's a fine enough use of "obviously", and they don't mean it from a legal standpoint. If you were an editor of the article, you could probably have convinced them to change the sentence to say "…obviously not a copying issue…" instead of "copyright infringement" or some other nuanced edit. This is nothing more than being super picky about the exact wording in one sentence.

> I refuse to accept that the subject of a recent split decision in the Supreme Court can fairly be defined as "obvious"

While that may be a fine enough guideline, there certainly can be judges, even on the SCOTUS, who argue against what is "obvious". But again, the sentence you object to wasn't a legal brief, it was just an attempt to express the OBVIOUS lunacy in the DVD example having anything to do with copying / copyright.

Reductio ad absurdem: if a law is passed saying that it shall be considered "homicide" if a fiction author describes a murder in a book, it would still be perfectly sensible to say, "that is obviously not homicide".

Point is: the law can be "obviously" wrong. The only weird part of their sentence is that "copyright infringement" is a legal wording, and they were using it to refer to the concept rather than the legal interpretation.

It's a fine enough use of "obviously", and they don't mean it from a legal standpoint. If you were an editor of the article, you could probably have convinced them to change the sentence to say "…obviously not a copying issue…" instead of "copyright infringement" or some other nuanced edit. This is nothing more than being super picky about the exact wording in one sentence.

You make good points, and I appreciate your response, but I think the issue goes deeper than the wording. If your reading is true, then I'm bothered by the complacency of the author in allowing the reader to conflate the legal and the logical. If this were an editing oversight, it's forgivable; but as a rhetorical strategy I find it deplorable.

While that may be a fine enough guideline, there certainly can be judges, even on the SCOTUS, who argue against what is "obvious".

Sure, but given the manner in which Supreme Court cases are chosen, it's exceedingly unlikely that a case would make it to the level of the Supreme Court unless there is something non-obvious (or at least disputed) about the matter.

Reductio ad absurdem: if a law is passed saying that it shall be considered "homicide" if a fiction author describes a murder in a book, it would still be perfectly sensible to say, "that is obviously not homicide".

And if a law is passed that says a drawing depicting a tentacled monster having sex with a cartoon child is legally classified as "child pornography" is it also reasonable to say that a cartoon is "obviously not a child" (http://ansuz.sooke.bc.ca/entry/335)? Possibly, but it would be disingenuous for an expert on that topic to do so in an article discussing that exact legal debate in a manner that is likely to mislead the reader.

The only weird part of their sentence is that "copyright infringement" is a legal wording, and they were using it to refer to the concept rather than the legal interpretation.

I think it's a conscious strategy rather than a weird detail. The fashionable term for this sort of approach is "motte-and-bailey" (https://philpapers.org/archive/SHATVO-2.pdf), and involves intentionally conflating two concepts, one which is easily defensible and one which is not. The base question for me is whether or not the author is consciously using a rhetorical strategy that involves misleading the reader, not with whether some degree of simplification is always necessary. It makes me doubt the strength of an otherwise reasonable argument when an author intentionally adopts such a strategy, and I think Doctorow is a good enough author that I start with the assumption that the rhetorical effect is intentional.

Given that you don't seem to see this sort of rhetorical pattern throughout, you just find fault with one specific sentence and the use of "obviously" and "copyright infringement" it's only fair and reasonable to assume it's nothing more than an editing oversight.

You're really reading way too much into this. You would need to show that Doctorow has a pattern of doing this to even have a reasonable suspicion. He's a great writer, but he's human.

Consider this: he didn't want to say "playing an Indian DVD in Tulsa is obviously not copying", he wanted to say, "playing an Indian DVD in Tulsa is obviously not an infringement on the concept of copyright as it is generally defined both colloquially and legally." He means that in the same way that telling people how to bypass DRM is NOT itself copyright infringement, even though it's a violation of a copyright-based law.

I mean, there's not an easy shorter way to say, "it's ludicrous to think that DVD playing in a different continent is possibly copyright infringement, regardless of the complex legal arguments that get such an argument all the way to the point of a portion of the SCOTUS getting this wrong."

Do we even have a way to talk about the concept of copyright infringement separate from the overly materialistic discussion of "copying" or the risk of being interpreted as making a legal argument internal to attorney-style legal chatter??

I think the implied part of the sentence you're tearing apart is: "it's obviously not copyright infringement (in terms of what that actually means as both a general and legal concept and yet our screwed up legal system has allowed people to make a legal argument to that effect!)"

This is similar to my reductio ad absurdem still. The law can say that a cartoon is a child, but the law would be obviously wrong. But the law was getting at what is "child pornography" and that doesn't mean the cartoon is a child, it means it is a cartoon of a child and thus debatably child porn. There's no legal idea in that case that the cartoon is a minor-age citizen/resident etc. In "child porn" child is more of an adjective than a noun.

Given that you don't seem to see this sort of rhetorical pattern throughout, you just find fault with one specific sentence

No, when I said I would "focus on a specific example", I didn't mean to imply this was the only example. I was hoping to focus on just one at a time for clarity. It's a relatively short list, but there are others, mostly in the same section "DRM has nothing to do with copyright".

The next down the list for bothering me would be "It's not a copyright infringement to record a Netflix movie to watch later." While another fine example of something that arguably should not be copyright infringement, legally this is uncharted territory. There's a great summary of the issue here: https://www.tomsguide.com/us/legal-playlater-record-netflix,....

I think the implied part of the sentence you're tearing apart is: "it's obviously not copyright infringement (in terms of what that actually means as both a general and legal concept and yet our screwed up legal system has allowed people to make a legal argument to that effect!)"

Yes, I think that's a fair summary. It's certainly easier to make the argument "DRM has nothing to copyright" if you are able to start with the premise that "Copyright infringement has nothing to do with copyright". But I'd rather see that premise made explicit, since concealing it leaves me worried about what other legally dubious but rhetorically useful premises are hidden elsewhere.

(Thanks for your patience in discussing this. I'll drop out now.)

Thanks for the gracious exchange.

"I find myself less trusting of the EFF than I was before reading it. Is there a short descriptive term for "alienating your allies by obfuscating the details in an attempt to make a stronger case than the evidence actually supports"?"

This is very much my view also.

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