I tried to reply to Joe Holcomb’s rant about the Google Toolbar violating the DMCA over on his website, but his comment page won’t accept my comment, so I’ll do it here. This is the comment I tried to post:

Joe, I assume that you mean that Google violates Title V of the DMCA because it creates a copy of a protected design and then republishes it for use in trade; if I’m wrong, then I apologize. But if I’m right, then I feel I need to correct you, because despite you saying that Title V is “the section that protects copyrighted works online,” that’s just not true — Title V protects “certain original designs” (note the lack of the word copyright anywhere in the Title). And to be very specific, Title V only applies to boat hull designs. (The definition is right there in Chapter 13, Section 1301(b)(2): “A ‘useful article’ is a vessel hull, including a plug or mold, which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”) Perhaps that’s why the short title of Title V is “Vessel Hull Design Protection Act.”

I seriously wish that people would stop trying to redefine reality in order to try to satisfy their position in this argument. Nothing in the behavior of the Toolbar is automatic, the links that the Toolbar creates have characteristics which distinguish them from any and all other links on the page, and the Toolbar never rewrites links that authors have already included in their websites which earn those authors affiliate money. And now, I can add to that list that web pages are not vessel hulls, and Google isn’t profiting on the backs of the poor, mistreated boat hull designers’ work.

UPDATE: It turns out that Joe must have comments set to need moderation before posting, because he’s been putting ‘em up when he posts his replies. And his latest reply is hilarious — he makes up or assumes definitions to fit his idea of what the DMCA should protect. The best example is Joe’s statement that Title V of the DMCA extends its legal protections to “an original design of a useful article,” but then totally omits that Title V very specifically defines what “useful article” means: “a vessel hull, including a plug or mold, which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” (section 1301(b)(2), to be exact). I think I’ve come to the realization that he’s not doing this with total intention to mislead, but rather, he just doesn’t have any idea how to read the law. I guess that’s why there’s a whole cadre of professionals out there who make a living interpreting and defending the law!

Comments

I guess thatís why thereís a whole cadre of professionals out there who make a living interpreting and defending the law!

Either that, or that whole cadre of professionals exists because they made it as difficult as possible to understand the law without their help.

• Posted by: Rogers Cadenhead on Feb 25, 2005, 1:05 PM

(re causes and effects of lawyers) It seems likely that that truth is somewhere in between, where it usually is.

• Posted by: Karl Ramm on Feb 25, 2005, 4:53 PM

Jason, that’s some good legal analysis. (You’re right, by the way.) We’re hiring new associates at my firm, so whenever you feel like giving up the practice of medicine, give me a call. (Indeed, some of the best patent lawyers are also doctors.) We’ll make you a special litigator in charge of enforcing boat hull patent applications.

• Posted by: Steve R.den on Feb 26, 2005, 9:14 AM

Sez Joe:

My interpretation of the law does not have to be correct.

Quite. His interpretation of the English language isn’t that good, either.

• Posted by: nick sweeney on Feb 27, 2005, 11:48 AM
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