Finally hitting the core question (RE: DMCA alternatives)

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

> In his May 8
> ruling against Elcomsoft's motion to dismiss the DMCA charges against it,
> Judge Ronald Whyte held, in effect, that criminalizing access leaves
> fair-use rights unaffected.

By "criminalizing access" do you mean "criminalizing the circumvention of
lawful security mechanisms"?  Surely the DMCA doesn't make it illegal to
access protected content -- only to access it by means that involve
forcing one's way past the protection.

> Yes; the main problem with the various locked-house analogies is that they
> use an example from real property to shed light on intellectual or
> quasi-property.  There is little doubt about the right to lock up real
> property.  <snip>  But I do have a fair-use right
> to intellectual property, which therefore limits the right of its owner to
> lock it up and exclude me.

Now we're getting to the heart of the question.  If I were a smarter
person, I would have seen this from the beginning and posed it this way,
but it took awhile (and the gracious help of everyone who's been arguing
with me) for the issues to boil down in my mind:

Granted the difference between real property and intellectual property,
does it in fact make legal sense for a copyright holder to impose
restrictions on the use of its copyrighted information by the general
public?  In other words, should Elsevier be allowed to restrict access to
its online journals, only giving it to those who have paid a fee?

IF NOT, then why are they currently allowed to do so?  Is it simply a
matter of statute not having caught up with reality?  (And does that mean
that when the law is perfect, no one will be able to charge anyone else
for access to information, because to do so would hinder fair use by those
who have not paid?)

IF SO, then where is the coherent argument for allowing people to
circumvent those restrictions?

> I understand that if circumvention is legal in pursuit of fair-use rights
> and illegal in pursuit of infringement (roughly, the Boucher bill), then
> IP owners will have to chase pirates only after the piracy has taken
> place.  But IP owners should join the club of other potential crime
> victims who can only chase criminals after a crime has been committed.

This is not a bad point.  But...

> I don't see why stopping IP infringement is so much more urgent than
> stopping murder that we have to remove the element of intent and punish
> lawful behavior in order to get at the unlawful behavior.  We don't punish
> all shooting of firearms in order to get at firearm-murder.

No, but people shoot firearms for all kinds of reasons that have nothing
to do with crime.  The same is not true of housebreaking, which is one
reason housebreaking is illegal even if it results in no real harm to the
house or its occupants.  I think a good case can be made that hacking is
much the same, even though the ownership of a house is different from the
"ownership" of information; both housebreaking and hacking involve
defeating lawfully-imposed security measures put in place to protect stuff
that someone has the legal right to protect.  The question, again, is
whether or not copyright holders really do (or should) have the legal
right to restrict access to that content over which they hold copyright.
If they shouldn't have that right, then _that_ is what we, as a
profession, ought to be saying.  But if they do/should have that right,
then how can we argue that those restrictions shouldn't have any legal
force?

-------------
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             -- Elvis Costello
FX  (775) 784-1328
rickand@unr.edu