Re: Fair Use litigatable?

On Wed, 24 May 2000, Chris Mohr <chrismohr[_at_]sprintmail.com> wrote:
>
> Hoboy -- I know I'm going to generate flame for this, but here goes.

   I'll try to keep it set to "toast" or lower.

> 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.

   "As it's understood". An interesting wording. My understanding of fair use comes from the treatise "The Fair Use Privilege in Copyright Law" by William F. Patry, which begins by taking a pretty detailed look at the history of "fair use" and how it arose in the United States. Where my understanding diverges from that which is commonly held is in this history.

    According to my recollection, "fair use" in the US began in the USC in the 1830's, when the USC declared that the courts alone had the power to determine the fundamental public policy regarding the limits of Congress's power to institute copyright law, and those limitations were "fair use". This was after an attempt by the Congress to "define away" fair use in the copyright statute after an earlier ruling they didn't care for. Then, in the 70's we have Congress again defining "fair use", ostensibly to merely codify the existing precedent. However, to my mind, this is in no way a limit on what the courts may consider a fair use, based on this long existing precedent that the courts alone have the power to make that determination. So, when I see someone attempting to use Congress's definition to logically box in "fair use", I take it with a barrel of salt. Or when I see lawyers who respect this artificial limitation by coming up with other defenses, such as "copyright misuse".

    Of course, my recollection could be incorrect. I read that over a year ago, and didn't take any notes. I should go back and make sure of my reading of it, considering how fundamental a basis it forms for my thinking about what fair use is (as opposed to the dicta of the Congress in Title 17).

Lynn

Lynn Winebarger
<owinebar[_at_]free-expression.org> Received on Thu May 25 2000 - 13:18:25 GMT