RE: DMCA alternatives

["Bolick, Bob" <Bob_Bolick@mcgraw-hill.com>]

Just a reminder:  To be precise, fair use is not a right; it's a doctrine,
a defense against a claim of infringement.

RE "magic technology" to address the problem of balancing appropriate
protection with fair use:  work is proceeding that may help with this in
the not-too-distant future.  Embracing it, however, will require
dispensing with current knee-jerk reactions to Digital Rights Management
technology.

The Open eBook Forum is engaged in work on a Rights Expression Language
standard, whose purpose is to enable machines/software to understand and
act on usage permissions, rights, license terms, etc.  Both the ALA, AAP,
publishers, intermediaries (e.g., NetLibrary/OCLC), and, of course,
technologists have been working together on this.  MPEG21 has issued a
call for a standard in this arena, and the OeBF's efforts will culminate
in that response.

For more information, go to http://www.openebook.org/wgcontact.htm and
http://www.openebook.org/requirements/.  At the former URL, you will find
a brief mission description and contact names, if you're interested; and
at the latter URL, you will find a database where raw requirements
received from stakeholders have been recorded, and where normalized
requirements will be posted.  If you are interested, I would urge you to
visit the OeBF site, also to take a look at the DRM requirements document
posted at the AAP's web site (http://www.publishers.org/ebookstudy.htm),
and -- for librarians -- to check in with the Rick Weingarten at the
Office of Information Technology Policy at the ALA to learn about library
representation in the OeBF.

RE fair use in a digital environment.

In the print environment prior to the ubiquity of the photocopier, I used
to have to copy out by hand the long passages of criticism I wanted to
cite in my college and grad school papers.  When I reproduced them in
those papers, I was careful to limit the amount, reproduce it accurately,
and provide acknowledgement.  Later, as a copyeditor, acquisitions editor,
and editorial director, I advised and cautioned authors on this and
provided them with the necessary forms to request permission when the
amount of text or what they wanted to reproduce exceeded the Chicago
Manual's guidelines on fair use.

The copy/paste and print functions in most media viewers have confronted
copyright holders and users with a situation that seems to go beyond that
presented by the photocopier.  Copied/pasted materials can more easily
disappear (unacknowledged) into the work of others and be distorted there.
Fair use?  I don't think so (neither does the Pulitzer Prize committee;
but then the New York State's Education Dept seems to think it's okay in
the English Regents exam ;-).

What if the copy/paste function came with an automated citation whose
removal (either the code or the citation itself) would be illegal; what if
the function could recognize the amount being copied as a percentage of
the whole work and then allow or disallow it based on a usage parameter
set by the copyright holder, and, if disallowed, then generate a link the
user could follow to seek permission?  Would these be considered undue
constraints on fair use?

It is not outside software capabilities today to do some of this (see
ebrary's "Information Tool"), and if the OeBF and MPEG21 are successful,
the capabilities could be recognized as standards.  But if this capability
were recognized in law or license, would we better or worse off, or the
same?

It's only been 4 years since CONFU.  Time again?

Robert Bolick
Vice President, New Business Development
McGraw-Hill Professional
2 Penn Plaza, 12th Floor
New York, NY 10121
T.(212) 904-5934  F.5569  M. 646-431-8121

Chairman, AAP Copyright Committee
Treasurer, International DOI Foundation

-----Original Message-----
From: Peter Suber [mailto:peters@earlham.edu]
Sent: Sunday, June 02, 2002 12:35 AM
To: liblicense-l@lists.yale.edu; fos-forum@topica.com
Subject: RE: DMCA alternatives

[SNIP]

In principle we could satisfy both the rights of IP owners and fair-use
rights of IP users with a selective lock --one that allows fair-use
access, blocks everything else, and automatically dissolves when the
underlying copyright expires.  But for now I think we should assume that
this is impossible.  (I'd hold out the hope that creative programmers
could save the day, but "fair use" is too ill-defined to regulate with
code less flexible than human judges.)  If it is impossible, then it seems
at first that we face the stark choice between unselective locks and no
locks at all, radically tilting the balance of copyright interests either
in favor of owners or in favor of users.  So far, Congress and the courts
have chosen the former.  The beauty of Rick Boucher's bill is that it
shows a very reasonable third way; Congress and the courts have been
fooled by a false dilemma.  (More below.)

[SNIP]

Boucher's bill would legalize circumvention except when there is an intent
to infringe copyright.  That would legalize circumvention in pursuit of
fair-use rights, which is the point.  In the absence of magical technology,
which would allow fair-use access and block everything else, this legal
solution is as close as we may get to a proper balance of interests.  The
only reason why Boucher's bill isn't perfect, and why magical technology
would be even better, is that circumvention is too difficult for ordinary
users who wish to exercise their fair-use rights.

----------
Peter Suber, Professor of Philosophy
Earlham College, Richmond, Indiana, 47374
Email peters@earlham.edu
Web http://www.earlham.edu/~peters

Editor, The Free Online Scholarship Newsletter
http://www.earlham.edu/~peters/fos/