RE: Alternatives to the DMCA (please post to lib license)

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

I should not presume to generalize what it is that all copyright holders
want.  Some want remuneration, some want fame and recognition, some want a
response, some "may" want perfect control.  But if pressed to generalize,
I'd say, a majority of copyright holders want perfect protection for the
digital content over which they have the exclusive right of control.
That right is exercised in numerous ways, infinitely divisible, but the
exclusive right of control is not the same thing as perfect control.
This digital publishing world is a strange new one in which intellectual
property is an intangible good that is perfectly reproducible on any scale
and modifiable without the next user's detection, and can easily be
unremunerated, and unacknowledged.  In the absence of some sort of
effective hurdle, the copyright holder's exclusive right of control
becomes meaningless.

Any serious alternative to the DMCA would have to take that into account.
In the absence of any DRM and for all those forms and formats in which the
intangible good can be delivered, how do we make the copyright holder's
exclusive right of control meaningful and allow for fair use. (And, no,
meaningful does not mean that the copyright holder's right is replaced
with the right to go to court month in month out in the effort to prove
intent -- try that against anonymous posters of pirated content in a p2p
environment.)

So then we turn to licenses and DRM to make our way.

Fire and ice, as Ann Okerson once put it.  (The only contribution to the
metaphor contest I'm willing to endorse ;-)

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-----
The Rick Anderson asked about alternatives to the DMCA.  One suggestion is
to revise the law so that "intent" is paramount when a copyright holder
claims infringement.  This means that in general, people are assumed
innocent until proven guilty, and it is pretty much the way the copyright
law has been applied until the last couple of years. Section 1201 assumes
that if you circumvent technology you are a criminal even if you are
exercising fair use.  As the law stands now, you cannot exercise fair use
(of a digital resource protected by DRM, encryption, whatever) without first
committing a crime (with incredible criminal penalties - up to $500,000 and
up to 5 years in jail, for a first offense, double it for second offense).

Reverse engineering? For computer scientists, this is their bread and
butter.  They strive to create a better mousetrap. The reason? Not to be a
pirate but to advance research (that can ultimately be used by copyright
holders to their benefit).

New legislation?  Look to Representative Boucher.  He plans to introduce a
bill revising the DMCA to reaffirm fair use and allow consumers to play
their lawfully acquired CDs on their computers and in their cars.

I completely understand the argument of copyright holders - they want
perfect control. But I also know that that is not purpose of the copyright
law.

Carrie Russell, Copyright Specialist
American Library Association
Office for Information Technology Policy
1301 Pennsylvania Avenue, NW  Suite 403
Washington, DC 20004-1701
(202)628-8421
crussell@alawash.org