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RE: DMCA alternatives

Date: Tue, 4 Jun 2002 18:29:11 EDT
 From: Peter Suber 
 Reply-To: liblicense-l@lists.yale.edu
 To: liblicense-l@lists.yale.edu
 Subject: RE: DMCA alternatives

 At 06:14 PM 6/3/2002 -0400, Rick Anderson wrote:
 > > Fair use means that others have a limited right of access and use;
 >This is the part that gives me pause. Does fair use doctrine imply a
 >right of access? In other words, if there's only one copy of the phone
 >book left in the world and I have it in my kitchen, does that mean that
 >you have the right to break into my house to get it? (Or, more subtly,
 >does it mean that I don't really have the legal right to keep it locked in
 >my house?)

 This is a good point. I think that the right to use x must carry with it
 some right of access to x. But this may not be the law. 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. At least that's what I make out of this
 poorly written sentence: "Fair use of a copyrighted work continues to be
 permitted, as does circumventing use restrictions for the purpose of
 engaging in a fair use, even though engaging in certain fair uses of
 digital works may be made more difficult if tools to circumvent use
 restrictions cannot be readily [i.e. legally] obtained."

 > > The only reason why Boucher's bill isn't perfect, and why
 > > magical technology would be even better, is that circumvention is too
 > > difficult for ordinary users who wish to exercise their fair-use rights.
 >Not having read the text of Boucher's bill, I don't want to put forward
 >any solid opinion of it yet. But if it does indeed say that the legality
 >or illegality of circumvention will be based solely on the intent of the,
 >uh, circumvener, then it has another serious flaw: let's go back to
 >Laurie's garage-door analogy. Imagine that she comes home to find that
 >someone has picked the lock on her garage door and is now sitting in her
 >living room watching TV. She calls the police, and the police say "Well,
 >has he broken or stolen anything yet?" She says no, and they reply, "Well
 >then, there's nothing we can do. Call us back when he does you some
 >harm." By Boucher's logic, as long as the guy doesn't intend to cause her
 >any trouble, there's nothing she can do about the fact that he's broken
 >into her house. And since there's no real way to judge a hacker's intent
 >until he actually does something, it means that database owners actually
 >have no right to defend their copyrights -- they only have the right to
 >chase pirates after the piracy has taken place. I'm not sure that's
 >Peter, I think you're getting to the heart of the question by asking
 >whether, in fact, an intellectual-property owner has (or should have) the
 >same right to lock his container as a homeowner does. I tend to see the
 >right to apply a lock as a pretty binary one: either you have the right to
 >lock the box and therefore others don't have the right to pick the lock,
 >or you don't have the right to lock the box. But maybe it isn't that
 >clear-cut. I'm still having trouble coming up with a coherent third
 >alternative, though. (Magic software is, indeed, the perfect solution --
 >but like you, I'm not holding my breath for a computer program that can
 >make legal judgments about the intent of its user.)

 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. Owning real property includes the right to exclude others.
 But because intellectual property is only quasi-property, not all the
 obvious features of real property carry over. In particular, I have no
 fair-use right to the interior of your home. If I did, that would limit
 your right to lock it up and exclude me. 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.

 As I said earlier, however, this doesn't have to mean dispensing with all
 locks and limits. But if we can't have a technological lock that respects
 all the rights on both sides (and I don't believe that we can), then we
 must settle for a merely legal lock --rules about what is permitted and
 what is forbidden-- or perhaps a weak technological lock supplemented by a
 legal lock.

 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.
 For example, we can only chase murderers after a murder has taken place.
 Boucher's bill would do for circumvention what we have long since done for
 murder, namely, make intent an element of the crime. This causes no
 catastrophe. Our police and courts deal with the reality of it every day.
 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. If we can
 manage here, where the stakes are high, then surely we can manage if we
 don't punish all circumvention in order to get at
 circumvention-infringement. Circumvention for fair use must be lawful,
 partly because it is non-infringing and partly because it is necessary to
 exercise a statutory right.

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

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