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RE: DMCA alternatives

Date: Mon, 3 Jun 2002 18:18:45 EDT
 From: Peter Suber 
 Reply-To: liblicense-l@lists.yale.edu
 To: liblicense-l@lists.yale.edu
 Subject: RE: DMCA alternatives
 Resent-Date: Thu, 1 Aug 2002 11:50:03 -0400 (EDT)
 Resent-From: Ann Okerson 
 Resent-To: Ann Okerson 
 Resent-Subject: RE: DMCA alternatives


 At 04:30 PM 6/2/2002 -0400, Robert Bolick wrote:
 >Just a reminder: To be precise, fair use is not a right; it's a doctrine,
 >a defense against a claim of infringement.

 I've never seen the point of this claim. Fair use has a statutory
 foundation, like the rest of copyright law. The rights of authors and
 publishers, like the rights of readers and purchasers, arise from the
 statute. We can call all or none of them "rights", but we can't pretend
 that some have a more solid foundation than others. Yes, copyright has a
 constitutional foundation beyond the statute, but the specific rights of
 authors and publishers are not enumerated there any more than the specific
 rights of readers and purchasers (although limited terms are explicit in
 the constitution).

 >RE "magic technology" to address the problem of balancing appropriate
 >protection with fair use: work is proceeding that may help with this in
 >the not-too-distant future. Embracing it, however, will require
 >dispensing with current knee-jerk reactions to Digital Rights Management

 If the software truly respected fair use rights, and didn't take short
 cuts at the expense of the rights of readers and purchasers, then I'd
 gladly accept it.

 I know that there are knee-jerk rejections of DRM, just as there are
 knee-jerk assumptions that users of unprotected digital content are
 thieves. I'll assume that your fears of piracy are thoughtful if you'll
 assume that my fears of DRM are thoughtful.

 >What if the copy/paste function came with an automated citation whose
 >removal (either the code or the citation itself) would be illegal; what if
 >the function could recognize the amount being copied as a percentage of
 >the whole work and then allow or disallow it based on a usage parameter
 >set by the copyright holder, and, if disallowed, then generate a link the
 >user could follow to seek permission? Would these be considered undue
 >constraints on fair use?

 Yes, these would definitely be undue constraints on fair use. Here are
 the problems I see off the top of my head:

 (1) There is no agreed percentage of a work for fair-use copying.
 Moreover, this may depend on the type of work.

 (2) But suppose that all stakeholders could agree on a percentage (here,
 let's say it's 10%). To compute the percentage in practice, the software
 would have to know the whole from which the part was being extracted.
 But in many cases it couldn't possibly know this. If someone emails me a
 legal 10% excerpt of an article, I should be able to cut/paste 100% of it,
 not just 10% of the 10%.

 (3) Facts cannot be copyrighted. If a copyrighted article includes an
 appendix of facts (say, an excerpt of a telephone book), then I should be
 able to copy portions of the article and all of the appendix even if the
 total is more than 10%. But I doubt that the software you're describing
 could tell the difference between facts and original, copyrightable work.

 (4) Government works cannot be copyrighted. So I should be able to
 cut/paste 100% of any government work. But the software couldn't possibly
 tell whether an unsigned ASCII text was a government work. The same goes
 for works in the public domain. The same goes for copyrighted works for
 which the copyright holder has given me permission to copy more than 10%.

 (5) There is an urgency or emergency exception to fair use, allowing (for
 example) musicians to photocopy 100% of some sheet music for an imminent
 performance, provided that they cannot purchase copies or obtain
 permission in time, and provided that they destroy the copies afterward.
 It will be a long time before technology can judge these emergencies as
 well as a human judge.

 (6) This technology would prevent me from cutting/pasting a 20% chunk of
 an article into my own editor so that I could make appropriate deletions
 before quoting or publishing a 10% excerpt. I'd have to cut/paste the
 desired excerpts one at a time. In that sense it would block
 non-infringing uses in order to block infringement, which is the same sin
 committed by the DMCA anti-circumvention clause.

 (6) Finally, many believe that it's fair use to copy 100% of a legally
 obtained piece of digital content (music, software, ebook, etc.) in order
 to make it readable on a new computer. Representative Rich Boucher (D-VA)
 is one of them.

 >Robert Bolick
 >Vice President, New Business Development
 >McGraw-Hill Professional

 Peter Suber, Professor of Philosophy
 Earlham College, Richmond, Indiana, 47374
 Email peters@earlham.edu
 Web http://www.earlham.edu/~peters

 Editor, Free Online Scholarship Newsletter
 Editor, FOS News blog