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

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

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?

What if I help my neighbor bypass her garage control as well?  And then if
I post the procedure on the internet, well ...?  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?

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.  My sense is that most consumers think they've bought a copy
of a song or whatever and that they have a right to use it in any
reasonable way and that nobody should be able to lock those uses away.
(Close to my analogy of buying a house, with copy protection being a
'defective' garage.)  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 (closer to your analogy of
someone breaking into your house or maybe more like you granting me title
to the siding but claiming that the frame and furnishings belong to you,
so I only get to view the house from the outside).

Where, in the vast middle ground between those views, does the line
properly belong?

Laureen C. Urquiaga
Associate Director for Access Services
Law School Copyright Coordinator
urquiagal@lawgate.byu.edu