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Donna Wentworth
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Ernest Miller
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Wendy Seltzer
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

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January 28, 2013

DMCA Violation Penalty Now Larger Than Terrorism Penalty

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Posted by Alan Wexelblat

With the wave of a pen, the US Librarian of Congress has decreed that we may no longer jailbreak our smartphones. To do so makes us criminals, subject to fines of up to half a million dollars, and five years' imprisonment. If you also jailbreak your spouse's phone then you're a repeat offender and can get a million dollar fine and ten years.

(I am indebted to Robert X Cringely for pointing out that this penalty is larger than the penalty I would get if I hacked the smartphone and turned it into an illegal explosive device.)

This debacle was nicely covered by Derek Khanna in The Atlantic yesterday. Khanna points out that we never actually passed a law that said it should be illegal to do this. Rather, the DMCA - a law passed before smartphones even existed - criminalizes all kinds of activity like this. It's possible for the Librarian of Congress to create exemptions to the law but it's certainly not required, and it didn't happen in this case because the Librarian decided to let an exemption lapse.

My guess is that it'll be reinstated, because this sort of thing is ludicrous and it's going to generate a lot of negative publicity. However, I think Khanna is also spot-on when he points out that we ought never to be in the position of having to depend on prosecutorial discretion not to come down as hard as the letter of the law allows (resquiat in pacem Mr Swartz).

In the past I've been pretty positive about some provisions of the law, especially Safe Harbor. I still think that's an important and necessary measure. But it's also clear that the law is in severe need of reform and update.

While I'm on the topic of laws that need reform, I highly recommend some of the recent blog posts by Orin Kerr at Volokh Conspiracy on the Computer Fraud and Abuse Act and its needed changes. See also some of the responses he's drawn such as this lengthy piece by Jamie Boyle. The CFAA is sort of outside the scope of Copyfight so I'm unlikely to link directly to more of the extensive discussion on this topic except when - as here - the questions raised in the Swartz case are directly relevant to our core topics.

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