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

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

(I know that lots of LBLICENSE-L readers are probably sick of reading my
postings by now, and this is the point at which I would usually offer to
take further discussion offline.  But I think this is an important and
fundamental issue, so I hope it won't be seen as too much of an intrusion
if I/we keep the discussion in this public forum, at least for now.)

> Let me quote a lawyer to see if it
> makes the distinction between real property and intellectual
> property more clear:

That is indeed a very important distinction, and it points up something
important about my "locked house" analogy.  My analogy is not concerned
with the security of the contents of the house.  It is primarily concerned
with the integrity of the house as a container which I have the legal
right to lock.  Even if my house is completely empty, I still have the
right to lock the door because I own the house itself.  And as I
(imperfectly) understand property law, my legal right to lock the house
carries with it the fact that my neighbor does not have the right to pick
the lock and sneak in.

Now.  Let's say I create a database and fill it with copyrighted
information.  The law allows me to place around that database security
measures that are designed to keep the general public from getting into it
without permission.  If it's legal for me to secure the content at all,
should it also be legal for someone to hack past my security measures?
It's not a question of who owns the information -- it's a question of
whether or not I have the right to lock the container that holds the
information.  If I don't have that right, then there should be no security
measures.  If I do have that right, how does it make sense to say that
someone else also has the right to defeat them?  I just can't find any
consistency in that stance.

> 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.

Referring to copyright holders as "powerful corporations" (or the
"intellectual property industry" or the "copyright empire") is
tendentious. What if the copyright holder is a single mother trying to
feed her three disabled children?  Does that change the philosophical
issue?

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

That's a very good point.  But does the law allow me to climb your fence
in order to access a public waterway that crosses your property, or does
it require me to find another way into the water that doesn't involve
trespassing?  If the latter, that may be the best analogy for the fair-use
problem.  The right to make fair use of copyrighted information does not
imply the right to access that information by any means necessary.

-------------
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