Finally hitting the core question (RE: DMCA alternatives)

["Laurie Urquiaga" <Urquiagal@lawgate.byu.edu>]

I very much appreciate Rick's willingness to pursue this question.  I
believe that this discussion is going somewhere very valuable.  Now I'm
going to cut a lot of good material and just respond to the last part:

>>> rickand@unr.edu 6/5/02 3:07:23 PM >>>

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?

Laurie:

I think it's erroneous to equate hacking with housebreaking.  Just as
"people shoot firearms for all kinds of reasons that have nothing to do
with crime", people also might hack into a program or database for all
kinds of reasons that have nothing to do with crime.  We've already
mentioned fair use.  Reverse engineering to isolate and identify bugs or
just figure out how the program functions, security testing, and product
evaluation (already explicitly approved by the DMCA for libraries) are
some non-piratical uses that come immediately to my mind.  While attempts
have been made, we don't hold a gun manufacturer liable for injuries
caused by his product when it is functioning properly, even though it is a
product specifically manufactured to injure/kill.

One problem I have with locking up IP too tightly is that ideas and
expression, perhaps particularly in non-verbal media such as images or
music, have a tendency to merge.  Up until now, when that happened, the
expression was to some extent forced into the public domain.  Under the
locked-up IP model, the result of a merger is that the idea could be
removed from the public domain.  That's the wrong result.

So, yes, I think content owners should have to right to protect their
expression, but ONLY to the extent that that protection does not interfere
with the free exchange of ideas.  Unlike the rules for real property or
personalty, protections for quasi-property should NOT be complete.  After
all, even in your house, if there is reason to believe that you have
created something that is a hazard to your neighbors, the state has the
right to go in and look around and even confiscate the offending material.
So sometimes housebreaking is OK.  The question is when, and under what
conditions?

I think intent is critical to the issue of circumventing IP protection. I
think circumvention for the purpose of fair use should be OK.  Criminal
circumvention should not.  It is not always necessary to wait for a
murderer to complete the crime.  Conspiracy to murder and attempted murder
are also criminally actionable.  Conspiracy to circumvent for the purpose
of infringement and attempted circumvention for the purpose of
infringement should also be actionable.  But the focus of the effort
should be on the true criminals, and not on hindering the general public
from the kinds of incidental infringements that they've been allowed in
the past.  I have great faith that the market will figure out a way to
make a profit in this new world if it is not crippled at the outset.  As
long as some industries think they have a chance to criminalize digital
lockpicking regardless of the intent of the practitioner, they're never
going to invest in figuring out how to make this new digital environment
work for everybody.