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

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

Hi, Laurie --

These are good and reasonable questions, I think.

> Actually, Rick, I think Chuck would find this to be a better analogy:  I
> buy a house, but it turns out that the automatic garage door opener is
> only configured to work for American-made automobiles.  Should it be a
> crime for me to bypass the door control mechanism so that I can park my
> BMW (yeah, right :-) in the garage of the house that *I* ostensibly own?

The problem with this analogy is that when you buy a house, the house and
its contents belong to you.  When you buy a CD or when you lease access to
a database, what's inside the container does not belong to you.  So while
it would make no sense for the garage door opener company to restrict your
right to bypass its mechanism (since its mechanism is designed to protect
stuff that you own), there is some reason for a record company or database
provider to restrict your ability to bypass its security measures, and to
expect legal protection for that restriction.  That's not to say that all
conceivable restrictions should be allowed, just that some kinds of
restriction make sense.

That said, you're certainly right in pointing out that your purchase of a
CD or your lease of database access should carry with it the right to
access the content.  That's one big problem with the DMCA, and that's why
I'm not defending the DMCA -- instead, I'm defending the idea that the
right to lock something carries with it the right to have the integrity of
that lock protected under the law.  If I have the right to lock my door
and you have the right to pick the lock, then my right is meaningless.
However, my right to lock the door doesn't mean that I have the right not
to give you what you pay for.  There needs to be a balance there.  But I
don't hear librarians arguing for balance -- I hear librarians arguing
that breaking in should be legal.

> Does the analysis change
> if the seller has a line in the fine print of the purchase agreement that
> says "buyer will honor the garage exclusivity rule" but the exclusivity
> rule itself is locked inside the garage and I can't see it until after the
> purchase is complete?

If you haven't signed the contract, it's not a contract (unless you live
in a UCITA state, in which case, heaven help you).  Of course, it goes
without saying that if you _do_ sign a contract with a "garage exclusivity
rule" included, you've made your own bed.

> The reason your house analogy doesn't feel right is that when a person
> buys a digital product, they usually believe they've purchased *something
> more* than the blank media (or else they'd just buy the blank media for a
> lot less money).  What isn't clear in any aspect of the transaction,
> either commercially or legally, is exactly what that something more
> actually is.

Well, a license agreement usually spells out very clearly what has been
purchased: the right to access the content and to use it in certain ways.
But of course, there's no signed license agreement when you buy a CD or a
book, and many people think that when they buy a CD or a book they have
purchased the content and can do whatever they like with it.  But they're
wrong, and always have been.  I'm not sure the law should reflect a
popular misconception just because it's popular.

> But most content owners seem to be arguing that the
> buyer owns only the physical object as if it were blank, and nothing
> recorded on the object belongs to the purchaser

I don't think I've heard any content owners make the argument that the
buyer owns nothing but the physical object as if it were blank; instead,
they argue that the buyer owns the physical object as if it contained
intellectual property to which the buyer does not hold the copyright.  We
can argue that there's no such thing as "intellectual property," in which
case it's true that nothing recorded on the object belongs to the buyer
(or to anyone else).  Or we can argue that there _is_ such a thing as
intellectual property, in which case the buyer _still_ owns nothing
recorded on the object.

-------------
Rick Anderson
Director of Resource Acquisition
The University Libraries
University of Nevada, Reno      "I'm not against the modern
1664 No. Virginia St.            world.  I just don't think
Reno, NV  89557                  everything's for sale."
PH  (775) 784-6500 x273
FX  (775) 784-1328                  -- Elvis Costello
rickand@unr.edu