Politech mailing list archives
FC: Politech readers reply to Chuck Sims on DMCA and "fair use" rights
From: Declan McCullagh <declan () well com>
Date: Thu, 01 Aug 2002 00:31:51 -0400
Chuck Sims may have represented the MPAA members in the DeCSS litigation, but I should point out that Chuck has distinguished First Amendment credentials. For instance, he volunteered his time to help the ACLU with its successful lawsuit challenging library filtering:
http://www.eff.org/Cases/ALA_v_US/20010320_aclu_chipa_suit_pr.htmlChuck also represented the Washington Post when it was sued by Scientology for the heinous offense of quoting 46 words of ostensibly secret scriptures:
http://www.eff.org/IP/IP_SLAPP/Scientology_cases/rtc_v_lerma_091595_hearing.transcriptIn 1993, Chuck represented the ACLU when filing suit to overturn "indecency" censorship of certain cable channels by the FCC:
http://www.skepticfiles.org/aclu/02_22_93.htmNow, this does not mean I think Chuck's statement is entirely fair. It seems to me that (a) the DMCA may not limit your fair use rights if you enjoy unfettered access to the work but (b) the DMCA is designed to limit the occasions where you will enjoy unfettered access.
I thank Chuck for responding publicly. If he wants the option of a sur-reply, I'd be happy to forward a response.
-Declan Previous Politech message: http://www.politechbot.com/p-03824.html --- Date: Wed, 31 Jul 2002 19:01:04 -0700 Subject: for politech: a reply to Chuck Sims From: "Fred von Lohmann (EFF)" <fred () eff org> To: Declan McCullagh <declan () well com> In response to Chuck Sims' post, claiming that the DMCA "does not impact, at all, fair use," I offer a parable: Imagine that you, as a member of the public, are granted the right to visit the U.S. Capitol Building. Now imagine that they have closed all the airports in Washington, blockaded all the roads, and sealed the train stations. You still have the same "right" to visit the Capitol, using the same methods that were available in 1840 when Justice Story first recognized fair use -- you can walk. Obviously, there may be reasons that justify the restrictions (like security). But to say that your right to visit the Capitol hasn't been "impacted," however, is pure sophistry. As to the Second Circuit's decision in the 2600 magazine case, it's worth noting that the question in that case was not whether fair use was impaired by the DMCA, but rather whether Congress had the power under the Constitution to enact it, *even if* fair use were impaired. Two very different things. Fred -- Fred von Lohmann Senior Intellectual Property Attorney Electronic Frontier Foundation fred () eff org +1 (415) 436-9333 x123 --- Date: Wed, 31 Jul 2002 13:13:57 -0400 From: "Paul Levy" <PLEVY () citizen org> To: <politech () politechbot com>, <declan () well com> Cc: <sivav () pobox com>, <CSims () proskauer com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all"Charles Sims is a very able lawyer, much more experienced in this area than I am, so I hesitate to offer any response to what he says.
However, I just wonder whether he hasn't missed the point of the article.Siva Vaidhyanathan's charge is that when ISP's or search engines receive threats based on allegations that something that an ISP has hosted contains copyrighted or trademarked material, they often have th eknee jerk reaction of removing the content provided by others, or the link, without giving the content provider a chance to persuade them otherwise. The reason for this knee-jerk reaction is not because they have no confidence that they might win a fair use case down the road, but because they decide they (1) cannot afford take the chance of losing, and (2) even more, cannot afford the expenses of defending the case. The past of least resistance is to take the content off their site, and let the content provider try to find somebody with more guts to put it up.
So, Sims' contention that the DMCA preserves fair use may be right, but isn't it beside the point?
To deal with the problem that Vaidhyanathan raises, why not simply amend section 230 of the Communications Decency Act to let the burden of defending a charge of copyright infringement (and the burden of paying any damages if the case be lost) rest on the author and not the publisher or host of the author's work? That is, repeal 47 U.S.C. section 230(e)(2)? (of course there is some question whether 230(e)(2) applies to trademarks at all, but that is another matter)
Paul Alan Levy Public Citizen Litigation Group 1600 - 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 http://www.citizen.org/litigation/litigation.html --- From: "Brendon J. Wilson" To: <declan () well com> Subject: RE: Charles Sims: The DMCA does not limit fair use "at all" Date: Wed, 31 Jul 2002 10:05:49 -0700 (remove email address if you use this - thx) To Chuck, "The DMCA does not impact, at all, the fair use rights that US law has provided for more than 160 years." Fine. I challenge Chuck to watch a DVD movie he purchased in the UK on his American laptop in the United States...without violating the DMCA. Brendon --- Date: Wed, 31 Jul 2002 12:12:36 -0500 To: declan () well com From: Ben Dyer <ben_dyer () imaginuity com> Subject: Fwd: FC: Charles Sims: The DMCA does not limit fair use "at all"Similar to "Guns don't kill people, people kill people." The DMCA doesn't restrict fair use, only the act of a company invoking the DMCA restricts fair use.
So, the DMCA doesn't restrict fair use, as long as you can achieve fair use without violating the DMCA (i.e. no reverse engineering, etc.). You have fair use to use that e-book wherever you choose...as long as you don't reverse engineer the software so that you can actually *use* that e-book wherever you choose...
--Ben --- Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" From: Shaya Potter <spotter () cs columbia edu> To: declan () well com Cc: CSims () proskauer com Date: 31 Jul 2002 13:15:38 -0400 I'm not a lawyer, but shouldn't it come down to a simple test. If I own a DVD, and I can't play it because of the DMCA, isn't that restricting my fair use of the item that I own? We're not even talking about fair use in a redistribution sense, but my ability to play my DVDs on my laptop which I always use in linux. The fact that the DMCA says that I am breaking the law each time I view my lawfully purchased DVDs on my laptop implies to me that its limiting fair use. So by extending your analogy of Picasso and Orwell, the fact that I can't view a dvd that I own, in the privacy of my own home, on a computer that I own, would seem to imply that fair use is being limited. --- Date: Wed, 31 Jul 2002 12:36:53 -0500 To: declan () well com From: Chris Parker <cparker () starnetusa net> Subject: Re: Charles Sims: The DMCA does not limit fair use "at all" At 10:04 AM 7/31/2002 -0400, Declan McCullagh wrote:
-- Date: Wed, 31 Jul 2002 09:43:20 -0400 From: "Charles Sims" <CSims () proskauer com> To: declan () well com Subject: Re: FC: DMCA is a "copyright cudgel," from Chron. of HigherEducation MIME-Version: 1.0 Declan:Sloganeering is not journalism, and to repeat (or republish) the canard that "fair use is dying" is preposterous. As you know, and as your readers should know, the fair use doctrine of copyright law is unchanged since 1976 (indeed, since the 1840's, when Justice Story famously explicated it), and it has not been amended or altered by the DMCA. The DMCA does not impact, at all, the fair use rights that US law has provided for more than 160 years. It has not amended, or changed, Section 107 of the copyright law, which now embodies the fair use defense, at all. So quote and criticise and review to your heart's content; but try to avoid the knowing falsehoods. You want to stare at or photograph a Picasso in someone's home, or a never-published manuscript of Orwell in someone's office, the better to criticise or review them? You can't. But not because of the DMCA; the reason is that fair use has never been a tool to obtain access.
It is just as preposterous to stand up and say that Fair Use is *not* in danger. The problem with the analogies above, is that what is being sidestepped by the DMCA is the ability for a consumer to make Fair-Use of technologically protected content. Yes, you have the legal authority to make Fair-Use, but the means with which to do so have effectively been cut off at the knees. To correct the analogies, it would be more accurate to want to stare at or photograph a Picasso in *your own home*. Consider a technological measure that shuttered the Picasso after 5 minutes of viewing, preventing you from being unable to view it further. Attempting to peek through the shutters is effectively against the law under the DMCA. It is correct to say that Fair-Use is not and has never been a specific method or tool. The threat seen in the DMCA is not that it makes Fair-Use illegal, but rather most of the tools by which Fair-Use may be implemented by a consumer are made illegal. As a counterpoint, it is possible to kill someone with a gun, yet guns themselves are not illegal ( with various exceptions noted about handguns and assault rifles in different municipalities ). However, because it is merely possible to share a copied dvd, the technological tools to make a copy are illegal under the DMCA. The premise of outlawing a tool because of a possible illegal use is a change in the direction of our society, and shift of power from the public to the corporations with the most lobbying bribes^H^H^H^H^H^Hcampaign contributions. -Chris -- \\\|||/// \ StarNet Inc. \ Chris Parker \ ~ ~ / \ WX *is* Wireless! \ Director, Engineering | @ @ | \ http://www.starnetwx.net \ (847) 963-0116 oOo---(_)---oOo--\------------------------------------------------------ \ Wholesale Internet Services - http://www.megapop.net --- Subject: RE: Charles Sims: The DMCA does not limit fair use "at all" Date: Wed, 31 Jul 2002 10:36:58 -0700 From: "Clinton D. Fein" <clinton.fein () apollomedia com> To: <declan () well com> I think Mr. Sims, and perhaps even you Declan, underestimate the diversity of opinion on your list. It is one of the few places where one can rely on receiving information that is not likely to take a predictable stance, or present a predictable viewpoint, as opposed to deliberately having to seek out varying opinions from different, single-agenda publications, lists etc. Keep it up. "...and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use." Perfectionism is relative. Near-perfect, but-not-quite, reasoning by the Second Circuit. Would the Second Circuit consider it a DMCA violation if one listened to a song in its entirety by pressing one's ear to the wall of one's neighbor? Clinton _____________________________________ Clinton Fein Editor & Publisher Annoy.com 370 7th Street, Suite 6 San Francisco, CA 94103 Phone: 415-552-7655 Fax: 415-552-7656 http://annoy.com _____________________________________ --- From: "Downes, Stephen" <Stephen.Downes () nrc ca> To: "'declan () well com'" <declan () well com> Subject: RE: Charles Sims: The DMCA does not limit fair use "at all" Date: Wed, 31 Jul 2002 13:50:29 -0400 Hiya, > -----Original Message----- > From: owner-politech () politechbot com > [mailto:owner-politech () politechbot com]On Behalf Of Declan McCullagh > The DMCA does not impact,at all, the fair use rights that US law has provided for more > than 160 years. It has not amended, or changed, Section 107 of the copyright law, which now > embodies the fair use defense, at all. So quote and criticise and review to your heart's > content; but try to avoid the knowing falsehoods. This is a bad argument. It is not necessary to alter the fair use provisions in order to have an impact on fair use. We can continue to have the right to fair use, but in order to exercise that right, we have to break some other nonrelated provision of DCMA. For example, we have the right to play a DVD we have legally purchased. However, in order to play a DVD purchased in another country, we must break the encryption format that allows the DVD to play on machines purchased here. In a similar fashion, we may have the right to reproduce part of an image in order to make a comment, but in order to exercise that right we must break another unrelated provision to make image copying possible on our computer. For someone to say that DMCA does not affect fair use is like saying that a law prohibiting the use of electricity does not impact on freedom of the press. Sure, there is no direct connection, but one is a prior condition for the other. We cannot run our printing presses (or computers) without electricity, and have thereform lost our freedom even if the law remains on the books. ---------------------------------------------------------------------------- - Stephen Downes ~ Senior Researcher ~ National Research Council Moncton, New Brunswick, Canada http://www.downes.ca stephen () downes ca stephen.downes () nrc ca http://www.iit.nrc.ca/e-learning.html --- Date: Wed, 31 Jul 2002 10:56:24 -0700 To: declan () well com From: Stephen Cobb <scobb () cobb com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" DeclanI think Chuck has a point about fair use, but what does he think about using DMCA as a cudgel to prevent me testing the security of software products upon which my business relies ("HP uses DMCA club to thwap computer security researchers"). Or writing a comparative review of graphics programs that includes the results of my time-to-render stopwatch tests.
Stephen --- Date: Wed, 31 Jul 2002 14:02:16 -0400 From: "Earl H. Merry" <early () eastcore net> To: Declan McCullagh <declan () well com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" * Declan McCullagh (declan () well com) [020731 12:52]: > From: "Charles Sims" <CSims () proskauer com> > To: declan () well com > Subject: Re: FC: DMCA is a "copyright cudgel," from Chron. of > HigherEducation > MIME-Version: 1.0 > > Declan: > Sloganeering is not journalism, and to repeat (or republish) the canard > that "fair use is dying" is preposterous. As you know, and as your readers > should know, the fair use doctrine of copyright law is unchanged since 1976 > (indeed, since the 1840's, when Justice Story famously explicated it), and > it has not been amended or altered by the DMCA. The DMCA does not impact, > at all, the fair use rights that US law has provided for more than 160 > years. It has not amended, or changed, Section 107 of the copyright law, > which now embodies the fair use defense, at all. So quote and criticise > and review to your heart's content; but try to avoid the knowing falsehoods. > You want to stare at or photograph a Picasso in someone's home, or a > never-published manuscript of Orwell in someone's office, the better to > criticise or review them? You can't. But not because of the DMCA; the > reason is that fair use has never been a tool to obtain access. > Mr. Sims is obfuscating the issue of the DMCA limiting fair use. He achieves this by making property law analogies which are not on point. The reason you can't get to the unpublished Orwell is b/c the law of trespass prevents one without sufficient privilege from entering the office <i>REGARDLESS</i> of what is inside. The DMCA criminalizes defeating a copyright protection mechanism <i>REGARDLESS</i> of whether you are privileged to use a protected work. So, using the analogy of the office and Orwell: Regardless of whether or not you had right to view the work, you can't go into the office. The DMCA has created a "property space" around works that didn't exist b/4. This space prevents us from accessing the work even if we have a legitimate Constitutional right to do so. So the DMCA has created a property right in preventing consumers from accessing works. hmmm. ---- Date: Wed, 31 Jul 2002 14:31:24 -0400 To: declan () well com From: Doug Isenberg <disenberg () GigaLaw com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" Declan:In addition to the fair use issue, it's also often overlooked that the DMCA is about a lot more than just legal restrictions of technological circumvention. Many of the same people who criticize the DMCA's anti-circumvention provisions also support its provisions limiting legal liability for online service providers. As I once wrote about Dmitry Sklyarov and the Adobe e-book case (as you know, the first criminal prosecution under the DMCA): "at least some of the non-anti-circumvention provisions [of the DMCA] are proving useful and relatively uncontroversial and should not be sullied by the same criticism intended for those prosecuting Sklyarov." See "The 'Other' Digital Millennium Copyright Act," http://www.gigalaw.com/articles/2001/isenberg-2001-10.html
Doug Isenberg, Esq.Author, "The GigaLaw Guide to Internet Law" (Random House, October 2002): http://www.GigaLaw.com/guide FREE daily Internet law news via e-mail! Subscribe at http://www.GigaLaw.com/news
--- From: "Kroll, Dave" To: "'declan () well com'" <declan () well com> Subject: RE: Charles Sims: The DMCA does not limit fair use "at all" Date: Wed, 31 Jul 2002 13:42:10 -0500 Talk about canards! (Although perhaps "straw men" is more appropriate.) Mr. Sims conveniently ignores that in his examples, the "someone" he's talking about is ME! It's my home that the picture is hanging in. (Even if it's on loan from a museum.) It's in my office that the manuscript sits, and it's not an unpublished manuscript, but a DVD being sold at every Wal Mart and Best Buy across the country! I may not have the right to sell copies of either of these theoretical works, but Mr. Sims denies me the chance to look at the painting _I paid to display in my house_, or to critique the copy of the manuscript I _bought_ from the agent of the copyright holder. Incredible. David Kroll (Please excise my email address to avoid spam) --- Date: Wed, 31 Jul 2002 14:45:01 -0400 From: "James M. Ray" <jray () free-market net> Declan McCullagh wrote: ...
You want to stare at or photograph a Picasso in someone's home, or a never-published manuscript of Orwell in someone's office, the better to criticise or review them? You can't. But not because of the DMCA; the reason is that fair use has never been a tool to obtain access.
That's odd. Fair use has given me access to LOTS of things I wouldn't have seen without it. I think content providers need to look beyond old-style monopoly access controllers, and get used to being paid (or tipped! Ask Courtney Love) directly by consumers. Of course, I probably have as much of a financial interest in saying this as Mr. Sims has in saying what he said, so please take what both of us say with a few grains of salt! I think the 2600 case is dangerous, because it's clearly a case of Judge-dislikes-defendant rather than any sane application of the law as I (barely!) understand it. I fully understand 2600's decision not to go to the Supreme Court, and sadly, I agree. JMR Feel free to send this to your list, if you think it's worth sending. --- Date: Wed, 31 Jul 2002 15:05:58 -0400 From: Nick Bretagna <onemug () gdn net> Declan McCullagh wrote:
This is a disingenuous statement about fair use at best, an outright, knowing lie in all probability.From: "Charles Sims" ... the reason is that fair use has never been a tool to obtain access.
Copyright is about controlling ACCESS, nothing *less*. Fair use defines the conditions under which that control is restricted or limited in the preventing of important public functions (review and criticism are the most likely examples, but far from the only ones). Hence, fair use is precisely nothing else BUT a tool for allowing access to otherwise restricted and controlled information.
Recent posts on Politech show clear examples of a "chilling effect" the DMCA has on fair use ACCESS of copyrighted information and IP:
HP's DMCA nastygram:<http://www.politechbot.com/docs/hp.dmca.threat.073002.html>http://www.politechbot.com/docs/hp.dmca.threat.073002.html
There's even an example in the article being replied to/about:"...to persuade Google to block links to several sites that included criticism of Scientology..." <http://chronicle.com/free/v48/i47/47b00701.htm>http://chronicle.com/free/v48/i47/47b00701.htm
Mind you, I'm not overly worried -- on the one side is Mr. Sims, his cronies, and their bought and paid-for legislature. On the *other* is literally -millions- of hackers and "smart-enough" people worldwide ready to thumb their noses at them all. I'll bet on the millions. Mr. Sims' "side" has already shown just how abysmally foolish they are, by attempting to get legislative permission to declare "a hacking war" on a group containing most of the best and brightest hackers on the planet.
I have no doubt the recent DoS attack is only the *first* salvo in that one. It won't be long before they think they're getting carpet bombed, if they foolishly proceed on that line.
To Mr. Sims:Your error is in imagining that theft and piracy are *equivalent*. They are not -- not in cause, in motivation, nor in goal. You would find that most people are, in fact, completely willing to pay a small, reasonable price for access, which, when spread amongst the millions of people out there would likely add up to even more than your current profit structures provide. You would lose control, however. Tough, you were going to lose it anyway.
The coming IP-based economy does not and -will not- support control-based profit structures (NO -- I do NOT mean you can't make a profit!).
The underlying information systems themselves do not support controlled *access*.
Your target is an impossible one. To quote J.P. Barlow, you are doing nothing but rearranging the deck chairs on the Titanic.
I can readily demonstrate this contention in more words than I choose to use here, for brevity's sake. Feel free to request said monologue independently.
All these efforts to introduce control into a system designed to route itself around control are doomed, if only because by the time you become aware of a shortcut around whatever measures you have created to limit access (and there are always numerous ones -- because for every hacker you have working on control systems, there are a -thousand- working to cut through them -- and the -best- ones simply would never work for you, because it's not in their very natures) -- By then, those shortcuts have already disseminated so far and wide that you can no longer prevent them from spreading to everyone. Everyone on the planet either *has* a copy of DeCSS or knows someone who does. Even if you get a large percentage of nations to kowtow to the abortion that is the DMCA, there will *always* be nations which will be prepared to tweak their noses at you and the US Government -- and in those places will lie access to the information you seek to suppress.
So, wise up... There's plenty of money to be made, and your goal would at best be marginally functional in a police state, to say nothing of a free society. One of the forces which brought down the Soviet Union was access to information. No matter how hard they tried, they could not control it... and that was *prior* to the existence of the Internet -- one of whose most deep rooted functions is to treat *limitations on access* as noise and route around them.
'Nuff said. -- ------- --------- ------- -------- ------- ------- ------- Nicholas Bretagna II <mailto:afn41391 () afn org>mailto:afn41391 () afn org --- Date: Wed, 31 Jul 2002 12:24:43 -0700 To: "Charles Sims" <CSims () proskauer com>, declan () well com, politech () politechbot com From: Steve Schear <schear () lvcm com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" Cc: sivav () pobox com At 10:04 AM 7/31/2002 -0400, Declan McCullagh wrote:
Chuck Sims is an attorney at Proskauer Rose who represented the eight movie studios suing 2600 magazine over DMCA violations. The studios won near-completely at the trial court and before the Second Circuit appeals court, and 2600 did not appeal to the U.S. Supreme Court.The Second Circuit concluded: "The DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, such as commenting on their content, quoting excerpts from their screenplays, and even recording portions of the video images and sounds on film or tape by pointing a camera, a camcorder, or a microphone at a monitor as it displays the DVD movie. The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use." (http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.html)
So, can I surmise then that the studios have no interest in preventing consumer access to devices enabling very high fidelity analog-digital capture of content reconstructed from their DMCA-protected recordings?
steve --- Date: Wed, 31 Jul 2002 12:57:00 -0700 (PDT) From: Bryan Taylor <bryan_w_taylor () yahoo com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" To: declan () well com Charles Sims makes a series of true statements that miss and/or conceal the real point. He culminates his letter with the statement "fair use has never been a tool to obtain access". That too, is true, but it is a compeltely deceptive statement. Indeed, fair use has never been a tool to obtain access, but rather access has been a necessary condition to make fair use, and access has always been controlled by the owner of the copy, not the author of the work. The DMCA purports to creates a new right for copyright holders that has never existed before: the right to control access via technological measures. This right gives them veto power on fair uses authorized by the owner. His statement is sort of like saying that you retain the right to swim, even if Congress passes a law that you may not have access to a swimming pool without the authority of the pool manufacturor. In truth, if someone else can tell you "no" then you have no right to swim, no right to property, and no right to fair use. The transfer of the "access right" from owner to author conflicts with traditional American values. Benjamin Franklin established the first public libraries so that people who did not or would not pay market value for a work could have access. The very concept of libraries that he started and that continues to this day is founded on the idea that the owner of the physical item controls who may use it, not the author or publisher. In short, controlling access to content, is and has always been a property right, not an intellectual property right. Remember that when Charles Sims says you still have the right to fair use, just not access, he is talking to the person who owns the DVD, owns the CD, or owns the video game. --- Date: Wed, 31 Jul 2002 14:59:44 -0500 From: Matt Oquist <moquist () css tayloru edu> To: Declan McCullagh <declan () well com> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all" Declan, > The Second Circuit concluded: "The DMCA does not impose even an arguable > limitation on the opportunity to make a variety of traditional fair uses of > DVD movies, such as commenting on their content, quoting excerpts from > their screenplays, and even recording portions of the video images and > sounds on film or tape by pointing a camera, a camcorder, or a microphone > at a monitor as it displays the DVD movie. The fact that the resulting copy > will not be as perfect or as manipulable as a digital copy obtained by > having direct access to the DVD movie in its digital form, provides no > basis for a claim of unconstitutional limitation of fair use." > (http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.html) As Siva Vaidhyanathan wrote in "Copyright as Cudgel", one of the types of fair use is when "your use does not significantly affect the market for the original work." http://chronicle.com/free/v48/i47/47b00701.htm Presumeably this is the type of fair use reflected in our ability to shift our lawfully obtained content in time and space. We can tape television programs for later viewing, and we can record radio broadcasts for personal use. We can reformat our purchased CDs as MP3s, for greater convenience, backup, and portability. Can we do this with a lawfully purchased DVD? No, we cannot. The DMCA prevents us from unencrypting the content of a DVD, even for the purpose of developing players for alternative OSes so the lawful owners can watch their purchased discs. I don't know of anyone that is complaining that the DMCA prevents him or her from commenting on or quoting from a movie released on DVD. The complaint is that we cannot do the things we've been able to do in the past with content released on other media. How does DVD region encoding _not_ limit Fair Use? Bruce Perens's planned DMCA violation had appeal; he paid good money for DVDs that he is not allowed to watch - solely because he is in this country, the land of the free! The above quote from the Second Circuit conveniently fails to consider _all_ the aspects of Fair Use. As it states, "The DMCA does not impose even an arguable limiation on...a variety of traditional fair uses". I'm not concerned about retaining only "a variety" (Mix 'n Match Fair Use?) of Fair Uses, I want them _all_, unchanged and unlimited by bits and pieces of other laws. (In other words, despite Chuck's point that the fair use doctrine of copyright law is unchanged, the DMCA places new limitations on which aspects of that unchanged fair use doctrine are legally practicable.) > fair use has never been a tool to obtain access. Yes it has; it _was_ a tool to obtain access to your own purchased property for the purposes of backing up and reformatting for personal use. The DMCA has changed that. To say that the DMCA does not destroy all fair use is correct. To say that the DMCA does not limit fair use "at all" is simply not true. Matt Oquist --- Date: Wed, 31 Jul 2002 13:54:57 -0700 To: declan () well com From: sayke <sayke () gmx net> Subject: Re: FC: Charles Sims: The DMCA does not limit fair use "at all"On Wed, 31 Jul 2002 09:43:20 -0400, someone with the password to CSims () proskauer com wrote:
Sloganeering is not journalism, and to repeat (or republish) the canard that "fair use is dying" is preposterous. As you know, and as your readers should know, the fair use doctrine of copyright law is unchanged since 1976 (indeed, since the 1840's, when Justice Story famously explicated it), and it has not been amended or altered by the DMCA. The DMCA does not impact, at all, the fair use rights that US law has provided for more than 160 years. It has not amended, or changed, Section 107 of the copyright law, which now embodies the fair use defense, at all. So quote and criticise and review to your heart's content; but try to avoid the knowing falsehoods.
i shouldn't need to remind an actual lawyer like mr. sims that the fair use clause itself need not be directly modified by the DMCA in order to be clearly and undeniably affected by it... but i find myself burdened with this necessity. in many cases, the DMCA renders impossible the legal exercise of fair use rights, and it doesn't need to rewrite the fair use clause in order to do that. as mr. sims should be well aware, the collusion between extra-legal institutions and law grants law far more weight, scope, and impunity then it could possibly have otherwise. as mr. sims seems quite unfamiliar with this subject, i can only wonder why mr. sims has been neglecting the articulate and accessible writing of lawrence lessig, which would make for a wonderful introduction. however, as mr. sims does in fact seem woefully uninformed with respect to this issue, he can only be considered unfit to speak on it, and i encourage him to refrain from speaking on this issue till he actually becomes informed with respect to it.
You want to stare at or photograph a Picasso in someone's home, or a never-published manuscript of Orwell in someone's office, the better to criticise or review them? You can't. But not because of the DMCA; the reason is that fair use has never been a tool to obtain access.
here, mr. sims misses the point with a staggering completeness. to use his analogy, i want to stare at a picasso that i bought, in my home, while using any pair of glasses i feel like using. the questions here do not revolve around obtaining access to other people's property - they revolve around obtaining access to my own.
--- From: "L. Gallegos" <jandl () jandl com> To: Declan McCullagh <declan () well com> Date: Wed, 31 Jul 2002 18:07:32 -0400 But I do have the right to make a copy for my own personal use (car player, etc.) and DMCA takes that away. I guess the answer for some consumers is to stop purchasing copy protected media or the devices that incorporate the technology to prevent making copies. That's the way I'm going. I'll just listen to radio for music. Heck, I could make a decent copy from that if I had a really good system and I'm not a geek. It just wouldn't be as good as a digital copy from the original. I think the entertainment industry is shooting itself in both feet. As a consumer, I'm not going to pay the outrageous price for a CD or DVD I can't protect by making personal copies of the original. Further, from what I have been reading, consumers are waking up to this and are refusing to accept what the industry is dishing out. Regards, Leah Gallegos ---- Date: Wed, 31 Jul 2002 20:00:31 -0700 From: Mac Hayes <mach37 () mindspring com> Organization: Land of Promise Declan McCullagh wrote: > > Chuck Sims is an attorney at Proskauer Rose who represented the eight > movie studios suing 2600 magazine over DMCA violations. > > --- > > Date: Wed, 31 Jul 2002 09:43:20 -0400 > From: "Charles Sims" <CSims () proskauer com> > To: declan () well com > Subject: Re: FC: DMCA is a "copyright cudgel," ... > MIME-Version: 1.0 > > Declan: > Sloganeering is not journalism, and to repeat (or republish) the > canard that "fair use is dying" is preposterous. As you know, and > as your readers should know, Who is this guy, a lawyer? (I know, I read the opening paragraph.) How could anyone expect even *your* (Declan's) readers, let alone any other ordinary citizen, to know this? > the fair use doctrine of copyright law is unchanged since 1976 > (indeed, since the 1840's, when Justice Story famously explicated it), > ...the reason is that fair use has never been a tool to obtain access. Again, how would any ordinary person, let alone even lawyers who are not experienced with copyright law, consider Justice Story's explication "famous"? Mac Hayes Rosamond, CA --- ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
Current thread:
- FC: Politech readers reply to Chuck Sims on DMCA and "fair use" rights Declan McCullagh (Jul 31)