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

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

See, I said I wasn't a lawyer.  I got it all wrong, possibly from the warm
librarian fuzzies clouding my brain ;-)  Let me quote a lawyer to see if
it makes the distinction between real property and intellectual property
more clear:

(Lawrence Lessig from
http://www.commonwealthclub.org/02-03grove-panel.html) "The law, in this
area, has traditionally been extremely balanced, right? We lawyers use the
word "intellectual property," but we're licensed to use that word. We're
trained that intellectual property is a balance between monopolies granted
by the state to create an incentive to produce, and access and fair use
guaranteed by the balance the law creates to assure that follow-on
innovators and creators can take advantage of the innovations that have
been produced. That's the balance the law has traditionally struck. The
problem today is that this word "intellectual property" has become
captured by people like my friend Jack Valenti, who goes around talking
about intellectual property not as a balance but as an extreme, not as
something that we're supposed to be constantly restriking as technologies
change to make sure it doesn't stifle innovation, but as a tool that the
dinosaurs can use to make sure there are no mammals in the future. He
talks about intellectual property as just like every other kind of
property.

"Real lawyers listen to that and say it rings hollow because it's not like
every kind of property. There's nothing that says you have a fair-use
right to my car. There's nothing that says that my car will be turned over
to the public after a "limited time." But the Constitution guarantees that
there's such a thing as fair use to copyrighted materials and guarantees
that intellectual property gets turned over to the public after a limited
time. That's not because the framers were Communists; it's because they
understood that intellectual property is different. We've lost that sense
of difference and we've allowed very powerful industries to therefore veto
the future that Intel and companies like that would produce." [Intel is
specifically mentioned because the quote comes from a panel including Andy
Grove]

Because of the extreme length of time of copyright protection given to
these powerful coprporations, the rational solution you are searching for
must place the burden on these corporations to prove that someone is
infringing on them.  What the DMCA provides them is with a mechanism to
not have to do that.  A security device, very different from one
protecting one's home, means that all access is blocked including fair use
access. I believe that as a fundemental principal we need to preserve the
public rights of fair use and stand against ways around it (it is, in
fact, on of the few things that I think that ALA has been dead right about
recently).

We should also point out that the DMCA is not the only threat to fair use
and the proper balance between public and private rights in regards to
intellectual property.  ALA's Washington Office has a handy quide to the
current issues at http://www.ala.org/washoff/fairuse02.pdf

(btw, my path analogy still works if you think of the path as a public
right of way across private property ;-)

---------------------------------------------------
Matt Wilcox, Epidemiology & Public Health Librarian
Yale Epidemiology & Public Health Library
matthew.wilcox@yale.edu
voice: 203-785-5680 | fax: 203-785-4998


Quoting Rick Anderson <rickand@unr.edu>:

> Matt says:
>
>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.
>
>I say:
>
>But the comparison isn't between homes and copyright -- the comparison is
>between homes and databases, and between copyright law and property law.
>If the law allows me to lock my front door and punishes those who pick
>the lock (regardless of their ultimate intent), why can't the law protect
>my proprietary database from those who would hack it?
>
>>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.
>
>My purpose, anyway, is to arrive at a rational solution to a vexing
>problem. The most rational solution may not be the one that makes
>librarians feel warm and fuzzy inside.  I don't that the DMCA is the best
>solution, but so far most of the objections I've heard have been more
>emotionally stimulating than logically convincing.
>
>>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.
>
>This is a worse analogy, I think -- if the path is public, then the
>fence (unlike the lock on my house and the security measures on my
>database) should not be there.  If the path is private, then climbing the
>fence _should_ be illegal.  Unless you're arguing that the whole idea of
>proprietary information is bad, in which case we're working from a
>completely different set of assumptions.
>
> -------------
> Rick Anderson
> rickand@unr.edu