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

["Rick Anderson" <rickand@unr.edu>]

> 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,

I'm trying to think of how the right of first sale could actually be
replicated in the context of an access lease rather than the sale of a
physical copy, and the only solution I can think of is a transferable
license -- under which, if I buy a year's worth of access to a database
and decide partway through the term that I don't want it anymore, I could
give (or sell) my access for the remainder of the year to someone else.
But the law already allows that, I think.  Individual license agreements
usually do not, so if I want that option I should negotiate it into the
license.  (And if the publisher doesn't want to allow it, then I should
take that into account when deciding whether to purchase.)  Is there a
need for new legislation here?  Should the law say that such terms are
required in all licenses?

> and another declaring software code to be a form of
> speech, to which all rights of freedom of speech apply.

That would certainly solve the legal problem for those who want to write
software code designed for hacking.  It would certainly not address the
problem of someone who is trying to maintain control over proprietary
information.  (But then if, as you implied, David, you consider all forms
of content control to be bad, I can see how this wouldn't bother you.)

> 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.

Why couldn't it simply be classified as illegal speech?  There is such a
thing.

> The better alternatives will not be easily accomplished, but they are
> there.

See, this is the problem: unless someone is actually proposing alternative
legislation, then the alternatives are _not_ there.  They are in people's
heads, but not in a place where they can do some good.  What concerns me
is that I hear lots of people complaining about the DMCA, but I don't
think I've heard about any serious alternatives to which we can point our
elected representatives.  Again, if such exist I would very much like to
be told (or reminded) of them.

-------------
Rick Anderson
Director of Resource Acquisition
The University Libraries
University of Nevada, Reno      "That wasn't a Freudian slip;
1664 No. Virginia St.              it was a Jungian slip."
Reno, NV  89557                       -- Dr. Katz
PH  (775) 784-6500 x273
FX  (775) 784-1328
rickand@unr.edu