RE: DMCA alternatives

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

>  Fair use means that others have a limited right of access and use;

This is the part that gives me pause.  Does fair use doctrine imply a
right of access?  In other words, if there's only one copy of the phone
book left in the world and I have it in my kitchen, does that mean that
you have the right to break into my house to get it?  (Or, more subtly,
does it mean that I don't really have the legal right to keep it locked in
my house?)

> 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.

Not having read the text of Boucher's bill, I don't want to put forward
any solid opinion of it yet.  But if it does indeed say that the legality
or illegality of circumvention will be based solely on the intent of the,
uh, circumvener, then it has another serious flaw: let's go back to
Laurie's garage-door analogy.  Imagine that she comes home to find that
someone has picked the lock on her garage door and is now sitting in her
living room watching TV.  She calls the police, and the police say "Well,
has he broken or stolen anything yet?"  She says no, and they reply, "Well
then, there's nothing we can do.  Call us back when he does you some
harm."  By Boucher's logic, as long as the guy doesn't intend to cause her
any trouble, there's nothing she can do about the fact that he's broken
into her house.  And since there's no real way to judge a hacker's intent
until he actually does something, it means that database owners actually
have no right to defend their copyrights -- they only have the right to
chase pirates after the piracy has taken place.  I'm not sure that's
reasonable.

Peter, I think you're getting to the heart of the question by asking
whether, in fact, an intellectual-property owner has (or should have) the
same right to lock his container as a homeowner does.  I tend to see the
right to apply a lock as a pretty binary one: either you have the right to
lock the box and therefore others don't have the right to pick the lock,
or you don't have the right to lock the box.  But maybe it isn't that
clear-cut.  I'm still having trouble coming up with a coherent third
alternative, though.  (Magic software is, indeed, the perfect solution --
but like you, I'm not holding my breath for a computer program that can
make legal judgments about the intent of its user.)

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