RE: A thought about H.R. 2281 - Anti circumvention

[Ann Okerson <aokerson@pantheon.yale.edu>]

Forwarded message:
Date: Fri, 5 Jun 1998 10:18:02 -0400 
From: Glen Secor <GSecor@YBP.com>
Subject: RE: A thought about H.R. 2281 - Anti circumvention

The issue of "digital trespass" is interesting and complex in and of
itself, but it takes on new dimensions in the anti-circumvention debate. 
Let's use an example not of hacking into a website, which seems somewhat
analogous to breaking and entering into a physical dwelling, but rather
hacking through encryption code or a secured digital container to gain
access to a piece of information.  Let's say I have a document file on my
computer, but the file is encrypted, with access available only upon the
purchase of a password and usage thereafter being metered.  Assume that I
hack the encryption, thereby bypassing the password and metering
transactions, for the purposes of using the information in the document in
a way that qualifies as fair use.  Has a crime been committed? 
 
Under the anti-circumvention provisions of H.R. 2281, apparently so. 
Would prosecutions of such a crime be successful?  Maybe.  What we can't
lose sight of in the debate over copyright in cyberspace is the
underlying, constitutional purpose of copyright - to promote the progress
of science and the useful arts.  If access to information becomes unduly
restricted, if fair use is overtaken by pay-per-use schemes, don't be
surprised if courts, especially appeals courts, find a way around the
plain language of anti-circumvention laws.  Courts are capable of some
wonderful pretzel logic when it comes to preserving the balance of access
and ownership in copyright law.  For example, have a look at the famous
Sony case, which probably wasn't really a fair use case to begin with, and
the very creative "time shifting" rationale employed by the Court. 

This is not to suggest that we should not be concerned with the wording of
digital copyright legislation.  Ultimately, I think courts will try to
preserve a balance between ownership and access, but in the meantime we
have to deal with the laws as written.  The concept of a "justifiable hack
for fair use purposes" might make a wonderful argument in an appellate
brief someday, but that argument would only be made following a successful
prosecution at the trial court level.  Perhaps we should be thinking now,
prior to enactment of these laws, about differentiating between
circumvention for personal usage and systematic or commercial
circumvention? 


Glen M. Secor, M.S. J.D.
President
Yankee Book Peddler, Inc.
999 Maple Street
Contoocook, NH 03229
Phone:  603-746-3102
Fax:  603-746-5628
http://www.ybp.com <http://www.ybp.com> 

	
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