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

["Michael Spinella" <mspinell@aaas.org>]

Chuck,

I may be behind on my reading, but I believe your argument below asserts
(or implies) two matters of fact that I at least haven't seen written
anywhere. You imply:

1) that someone somewhere has been put in jail for using the magic marker
trick to defeat encryption for no more sinister purpose than what would
have, in print, been considered a fair use of the protected content; and
2) that sometimes cds one has purchased are designed not to play on some
types of cd players.

Are either of these assertions in fact true? I'd like to know more about
them if this is the case.

I had thought your original argument was a disagreement about whether it
should be OK to hack into encrypted materials for the purpose of viewing
or copying them or exercising a legitimate fair use. Your position, if I
have it correctly, is that this type of behavior should be permissible in
order to ensure that fair use limitations to copyright protections are not
encroached in the digital age, and of course, in order to ensure the
continued reasonably free flow of information and ideas.

Whether or not one agrees with that position, it is at least a sensible
one, with a legitimate philosophical underpinning and some basis in the
law. It is an interesting and defensible position, to which (in my view)
Rick has raised some interesting and defensible objections.

But you seem to be disputing Rick's points by asserting a sort of 'straw
man' argument. Who would disagree that purchased cds should play on any cd
player? Who really thinks people who purchase cds and then mark the edge
with a magic marker simply in order to use them in some legitimate way
should go to jail? Maybe there are indeed some hardcore meanies in the
"intellectual property industry" who think that, but I sure haven't met
them.

I guess your point in raising these things was to attack Rick's comparison
of encryption to the doors and locks on a house. There might be material
in the house that is legitimately 'yours' or 'public' but that doesn't
give you the right to break into the house to get the material. Well,
Rick's analogy may have weaknesses (as do most analogies), but the
comparison is still on point, and the distinction Rick makes between the
content and the method of access is a reasonable one to consider. I'm
afraid I don't see how your assertions weaken or falsify his argument in
the least, especially if I am correct that they refer to exaggerated fears
and not to actual occurences. Please, please forgive me if I have indeed
missed the stories about the happenings you refer to - I would readily
agree with you that such outcomes would be perverse and unintended
consequences of the DMCA that are in desperate need of correction.

But even if your facts are correct and we all agree that such misuses of
the law should be stopped, I don't believe you have actually refuted
Rick's points. He doesn't seem to me to be saying that magic marker
wielders should be jailed, or that IP owners should be free to both sell
and prevent the buyer's use of their content.

Mike Spinella

>>> cahamake@email.uncc.edu 05/25/02 12:00PM >>>
Rick's response below is the argument used by the intellectual property
industry. It doesn't make much sense to me.

You bought this to play on a CD player and got home and learned that it
wouldn't work on the one you have because that's how I designed it-- Why
that's too bad. (usually you can't return them once they've been opened).
Marking the rim with colored ink makes it usable in your CD player--Go to
jail.

What house have you broken into with your magic marker? Why is this action
subject to a criminal penalty?

You just wanted to play it on your player, and I will put you in jail if
what you bought from me is played on a gizmo I don't approve of.

This law is nonsensical and designed by a buncha people who not only want
you to buy their product, but want to put you in jail if you use it!

Chuck

-----Original Message-----
From: Rick Anderson [mailto:rickand@unr.edu]
Sent: Friday, May 24, 2002 1:59 PM
To: liblicense-l@lists.yale.edu
Cc: Hamaker, Chuck
Subject: RE: Clarification (RE: "Fair Use" Is Getting Unfair Treatment)

> If the database owner has taken technological steps to restrict me from
> fair use actions, then it is illegal to circumvent those technological
> protections in order to make fair use of the content of the database. IT
> is illegal to circumvent adobe's security even if the use I want to make
> of the content is legal.

Right.  It's also illegal for you to break into my house, even if all you
want to do is copy a page from my phonebook.  Your proposed use of the
information is fair; your proposed mode of access is not.  Now: should
publishers be allowed to lock up information the same way I'm allowed to
lock up my house?  I don't know.  That's a tough one.

> That is what the DMCA does, removes the test of
> fair use from the equation.

That's not the same thing as changing the criteria for fair use.  Fair use
guidelines say what you can do once you get your hands on the content; the
DMCA says that not all ways of getting your hands on the content are OK.
(I'm not arguing that the DMCA is a good law, just pointing out the
difference between laws that regulate modes of access and laws that regulate
one's use of the content once it's accessed.)

-------------
Rick Anderson
rickand@unr.edu