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RE: DMCA Alternatives

From: Peter Suber <peters@earlham.edu> 
Date: Sun, 2 Jun 2002 00:34:55 EDT 

< SNIP >

> One way to frame the issue is whether copyright
> holders should have the right to put absolute or
> impenetrable locks on their copyrighted digital
> content in the first place.

Ah, the right question to ask.

> For ordinary property,
> like land and buildings, property owners have
> such a right, though even here there may be
> exceptions for entry by police and firefighters.
> But intellectual property is only quasi-property.
> (I'm sure that readers of this list already know
> all this, so I'll be brief.) Two limitations in
> particular make it less property-like than land
> or buildings: fair use and limited terms. Fair
> use means that others have a limited right of
> access and use; limited terms means that the
> property passes into the public domain after a
> period of time. Neither limitation applies to
> real property and for good reason.

The third limitation is the fact that expressive works are
made up of information.  In present circumstances, in fact,
this is the key factor.  Information as such intrinsically
has nothing to do with real property, or for that matter,
statutory exclusive rights.

> The problem
> with exceptionless copy protection on digital
> content, and laws that criminalize circumventing
> it, is that they treat intellectual property like
> real property, remove the limitations that make
> it merely quasi-property, and deny users their
> fair-use rights.

> Legally, this is a breathtaking category mistake,
> confusing two distinct legal concepts or
> collapsing the distinction between them when the
> distinction has been carefully worked out over
> many years by many courts as a fair and necessary
> reading of the constitution.

> In principle we could satisfy both the rights of
> IP owners and fair-use rights of IP users with a
> selective lock --one that allows fair-use access,
> blocks everything else, and automatically
> dissolves when the underlying copyright expires.
> But for now I think we should assume that this is
> impossible. (I'd hold out the hope that creative
> programmers could save the day, but "fair use" is
> too ill-defined to regulate with code less
> flexible than human judges.) If it is impossible,
> then it seems at first that we face the stark
> choice between unselective locks and no locks at
> all, radically tilting the balance of copyright
> interests either in favor of owners or in favor
> of users.

Aiming at the right answer here, but the real reason for
disparaging content control and not criminalizing its
circumvention is actually much more essential.

The core distinction to draw is between private interests
and publishing.  Publishing of expressive works is an
entirely different category from the concerns of privacy or
security, and must be treated as such.  Putting something
out under content control isn't really publishing, and
exclusive rights only cover expression per se.  We offer
exclusive rights in order to promote the spread of
information, and this is what publication is all about. 
This is the real reason why criminalizing circumvention of
content control supposedly for the sake of statutory
exclusive rights is the most profound category mistake of

Seth Johnson

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

Editor, The Free Online Scholarship Newsletter


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