Re: Fair Use litigatable?

On Wed, May 24, 2000, Peter F. Cassidy <pcassidy[_at_]world.std.com> wrote:
>
> I've been working with a number of firms that develop some flavor
> or another of technologies that can be used in Digital Rights
> Management schemes or content-access control systems. Interesting
> stuff but a radical departure from what we're used to -- such as
> libraries with books arrayed on the shelf for anyone tolook at
> for free.
>
> These schemes are like offering the public books with padlocks on
> them. You can see what is inside only after you pay full price
> for the entire work. You can buy it or walk away. End of story.
>
> Now, given that fair use is an entitlement drawn out in law, would
> it be possible for someone to go to court to get access to materials
> that are locked up with DRM systems so they could exercise their
> rights to fair use?

Hoboy -- I know I'm going to generate flame for this, but here goes.

Your email conflates two questions. There is no fair use of a work to which you do not have lawful access. Once you have that access, then fair use privileges attach. "Fair access" does not exist.

Currently, individual circumvention of these DRM systems is not illegal (but trafficking in the technology which would circumvent them is), but that will change when section 1201(a) enters into force in October.

As of October, regulations issued pursuant to section 1201 _may_ list a class of works to which the aniti-circumvention provision of 1201(a) does not apply. In addition, narrow defenses exist for certain types of activities (reverse engineering, libraries to see whether to acquire a copy, security testing, good faith encryption research, et cetera). But fair use, as it's commonly understood, is irrelevant to these determinations.

Cheers.

Chris Mohr
<chrismohr[_at_]sprintmail.com> Received on Wed May 24 2000 - 22:10:23 GMT