The "The Next Drug War: Possession Statutes Target Technology" concurrent session. (from left to right: Christian Genetski, Partner, Sonnenschein, Nath & Rosenthal, Anti-Piracy Counsel for DirecTV; Jason Schultz, EFF; Fred von Lohmann, EFF; Albert Zakarian, Esquire, DTVDefense.com; Robert S. Apgood, Attorney at Law, AvantLaw PLLC). Yes, that is Dave Schlossberg's hair to the left and Parker Thompson's hair to the right.

Robert S. Apgood, modeling his gorgeous DeCSS tie.

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.