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

["Hamaker, Chuck" <cahamake@email.uncc.edu>]

Michael

There are already problems with some music CD's being released that are
copy protected, and don't work on some cd players because of that code.
There have been a couple of news releases to this effect.

The case of DVD's not working on Linux machines, but writing code that
would permit that use, is already being decided in the courts...no defense
seems to be permitted that providing access to code could well be for
non-infringing use. Providing access to the code is sufficient reason for
legal action -at least that is my understanding of the DECSS cases.

I was stating that some one can be and has been jailed for circumventing
anti-circumvention software.

My understanding of the DMCA is that this is exactly the thrust of the
statute. That use of the material thus circumvented is fair use, is not a
defense. That is what the Elcomsoft and Adobe case is about. It is the
fact of the creation of a circumvention product that is illegal, and the
Russian programmer was jailed and still, (I may be behind on the details)
could end up in jail for creating a tool that might be used for either
infringing or non-infringing use.

Yes, my argument is that the use of the material should be the basis for
action, not the fact that I've used a different can-opener than the
producer wants me to use, to get to the content.

-----Original Message-----
From: Michael Spinella [mailto:mspinell@aaas.org]
Sent: Tuesday, May 28, 2002 10:39 AM
To: Hamaker, Chuck; liblicense-l@lists.yale.edu; rickand@unr.edu
Subject: RE: Clarification (RE: "Fair Use" Is Getting Unfair Treatment)

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