April 22, 2004

Liability for Possession

Today's Concurrent 9: The Next Drug War: Possession Statutes Target Technology, moderated by EFF's Fred von Lohmann, focused on the possibility of premising criminal and civil liability on the mere possession of technology. Von Lohmann discussed the trend towards liability for possession as demonstrated by various state "Super DMCA" legislation and DirecTV's filing of a throng of lawsuits against possessors of smartcard technology.

Sonnenschein, Nath & Rosenthal's Christian Genetski, who serves as Anti-Piracy Counsel for DirecTV, argued that imposing liability for the possession of devices the primary purpose of which is pirating content is quite different than punishing individuals for possessing general purpose technology.

In response, Albert Zakarian suggested that, in addition to difficulties in establishing the line between general purpose and primarily-infringing technology, we must question the wisdom of imposing liability for possession in the absence of evidence of actual harm to content owners or service providers. Researching security, reverse engineering, and exercising fair use rights may all serve as legitimate uses of technology primarily designed and used to violate the law. Robert Apgood adopted a similar view, explaining that, because "technology doesn't hurt companies; people do," litigation on the basis of possession alone is a fundamentally flawed approach.

Jason Schultz, also of EFF, analogized smartcards to Ferraris. If the possession of technology primarily used to steal content violates the law, shouldn't we impose liability on those who own a vehicle the primary purpose of which is to break the speed limit? Schultz also argued that because DirecTV's suits against consumers are brought under code sections that fail to provide for fee-shifting, individual defendants are often without access to an adequate defense, and choose instead to settle meritless claims. Perhaps most importantly, Schultz pointed out that without a right to possess technology, we will have no right to tinker, no right to develop new and legitimate uses, no right to innovate.

Posted by Aaron Perzanowski at April 22, 2004 01:57 PM
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