Decius wrote:
] ] Last week a joint study committee of the Tennessee
] ] legislature held a formal hearing and formally asked for
] ] alternatives to the MPAA's legislation which prompted
] ] CERC and CEA to take the wraps off an alternative model
] ] bill.
]
] Actual testimony is provided at this link. Is this the same
] hearing Flynn was telling us about?
]
] I like this alternative proposal because:
]
] 1. Its simple.
] 2. It focuses on actual theft of communications services that
] the service provider charges money for instead of more vague
] ideas about the letter of service contracts.
] 3. It eliminates all of the free speech concerns. You can talk
] all you want. You simply cannot sell devices.
] 4. Its probably redundant, but in that sense it makes a point.
]
]
] Some comments:
] I would add the word "knowingly" to the assistance paragraph
] (A2)
] I think the "staple of commerce" standard should be defined.

I wish it were all this simple. We (that is the TNDF) have put together a model bill as an alternative to the MPAA sponsored bill in TN. It has a good chance of being adopted by the committee. That is to say that they like it as an alternative. Am I 100% happy with our model bill? No. Do I think it's better than the MPAA bill and that I can live with it? Yes. But there are serious issues with it and other attempts at doing this.

For one, everyone is focused on devices, not action. This seems like an intuitive thing, but the whole argument is that you could go out and buy the "Cable Stealer 2000" and that would be legal or illegal depending on how 'devices' is defined. The industry wants to outlaw devices, so it's difficult to focus the conversation towards 'action' and not 'tools'. You try and make the analogy that people who kill other people are tried for murder and not tried for 'using an axe', but that doesn't get too far. People are afraid of the device, because they do not understand the usage of the device. They are afraid that someone will figure out that gunpowder and a tube will yield something horrible. Or more accurately, they are afraid that someone ELSE will figure this out before they do.

The other serious thing to consider is the state of mind, which is why drafting a doc based upon action and not tool is impossible. It requires that the court figure out the state of mind of the person committing the act. Were they deliberately trying to steal? Or was it just an accident? Maybe they thought they might get something for free, but weren't sure it was going to work. Or maybe your Grandma just plugged in the Cable Stealer 2000, not really understanding what it was doing ("Hey, I'm just trying to save some money!") In any case, these things should happen in criminal court, not civil court. Criminal court has a much more comprehensive and rigid set of requirements for determining state of mind ("beyond a reasonable doubt" vs. "seems likely"). The industry has no interest in using criminal courts because prosecutors don't view stealing cable as something they need to be concerned with on a daily basis and with great vigilence.

But finally, the thing that is most difficult is that even if you drafted a perfect bill that was based upon action and not tool, and you had the proper way of determining state of mind, you are still bumping into the 'defraud' paradox. Which is to say that if I figure out a way to save money by doing something myself versus utilizing the service provider's for-fee service, am I defrauding them? As an example, if Comcast offers a DVR service for $10/month, but I use TiVo or MythTV, am I defrauding them of their $10/month? There is no objective answer to this. And this is why the language of the bill means very little and the larger ideas of how a service provider has certain rights compared to the consumer is where all the meat is.

RE: Alternative to SDMCA