Poor analogy (was RE: DMCA alternatives (RE: Clarification (RE: "Fair Use" IsGetting Unfair Treatment))

[Matt Wilcox <matthew.wilcox@yale.edu>]

Ah, another day, another set of emails from Hamaker and Anderson.  As
constant as the dawn ;-)  (I'm poking, I know, but don't get me wrong--I
do like the turn in the conversation towards what would make for a better
DMCA rather than just the laundry lists of what is wrong with it).

I am not a lawyer--i don't even play one one TV.  I am not I am not a
writer, so artful analogy doesn;t happen for me either.  I barely made it
through my logic course in college so I am also not the best person to
come to when it comes time to evaluate logical arguments.

That said, it seems to me that using a breaking into a house analogy to
inform discussion about bypassing copy protection is not even an
apples/oranges comparison.  Homes and copyright are different enough that
comparisons involving them are of limited use--at least for me.  Just the
fact that one can own a home in perpetuity, passing that home to an
unlimited number of future generations compared to a limited monopoly
granted by the government as a way of balancing one's right to profit from
their creations with the public's right to build on those creations, well
that alone is enough to make the comparisons of limited value--even when
considering databases as opposed to CDs.

Reading Boucher's recent speech

(http://www.house.gov/boucher/docs/fairusespeech.htm) on fair use has some
descriptions of the problem that are far more informative.  Not new, of
course, but certainly refreshing when they are coming from a member of
congress.

If the purpose of the back and forth between Anderson and Hamaker is to
make Hamaker tighten his arguments for preserving the fair use provisions
by getting rid of the DMCA, then fine.  I am all for the often necessary
role of the devil's advocate.  But if it is to defend a law that gives
copyright holders the right to bypass fair use provisions by hiding
content behind technological devices that can prevent one from exercising
their fair use and noninfringing rights (rights shown by the supreme court
in the Betamax case to continue to exist even as new technologies come
into play), then I am sorry, I am not convinced yet.  If you really want
to stick with the real estate analogies, we shouldn't criminally prosecute
people who climb a fence if they have a right to walk a path.  We should
instead be preserving the rights to walk those paths as more and more of
them come under the control of a fewer number corporations.

--matt


Quoting Rick Anderson <rickand@unr.edu>:

> > Section 1201 assumes that if you circumvent technology
> > you are a criminal even if you are exercising fair use.
>
> But again, you could make the same argument about laws that prohibit
> breaking and entering -- they assume that if you want to get into
> someone else's house without permission, you must be a criminal.  But
> that need not be so.  Maybe you need to use a phone, or maybe you just
> want to get out of the rain.  There are a million innocent, non-criminal
> reasons to enter someone else's house, but I think we probably all agree
> that it's not a good idea to make breaking and entering legal.  Again:
> I'm not saying this analogy is perfect.  But I'm still waiting for
> someone to point out what's wrong with it.
>
> > New legislation?  Look to Representative Boucher.  He plans to
> > introduce a bill revising the DMCA to reaffirm fair use and allow
> > consumers to play their lawfully acquired CDs on their computers
> > and in their cars.
>
> This sounds constructive.  Is the text of his bill available online?
>
> > I completely understand the argument of copyright holders - they
> > want perfect control. But I also know that that is not purpose of
> > the copyright law.
>
> I'm not sure that wanting legal protection from hacking is the same
> thing as wanting perfect control.  But it certainly does mean wanting
> more control than many of us want copyright holders to have.
>
> -------------
> Rick Anderson
> rickand@unr.edu