Re: Clarification (RE: "Fair Use" Is Getting Unfair Treatment)

[David Dorman <ddorma@ltnet.ltls.org>]

Rick Anderson wrote:

>For the sake of argument, let's grant that the DMCA is
>stupid and wrong and fascist.  What's a better alternative?
>I bet there is one, but what is it and who is proposing it?

OK Rick I'll bite.

The better alternative would have been not to have passed the DMCA and not
to have made software code patentable.  At this point a better alternative
would be for the Supreme Court to declare the DMCA unconstitutional, for
Congress to pass two laws: one that replicates the Right of First Sale for
leased information, and another declaring software code to be a form of
speech, to which all rights of freedom of speech apply.

There are several factors which need to be kept in mind with regard to the
DMCA.  One is that few if any publishers are selling digitally based
information any more.  It is universally being leased.  This replaces the
First Sale Doctrine with contract law.  We need a law that replicates the
Right of Fist Sale for information that is leased to the general public
under contract law.  Rest assured that information providers will quickly
find a way to control the distribution of information within the
restrictions of such a law.  It is amazing what people with a profit
motive can accomplish.

Another factor is that the Supreme Court has held that software is
patentable.  By making software patentable, our rights to the code as
speech are effectively taken away.  This ruling is not only deeply flawed
logically, it is becoming a disaster for freedom of expression, for
innovation, and for economic freedom.  The posting of a Secure Digital
Music Initiative hack could only be considered illegal if the hack is not
considered a form of speech, and protected as such.

The better alternatives will not be easily accomplished, but they are
there. Personally, I find all the struggles against content control
refreshing, and I applaud them.

David
-- 
David Dorman
Consultant, Lincoln Trail Libraries
Contributing Editor, American Libraries
217-352-0047 (work)
217-344-2174 (home)
217-352-7153 (fax)