Re: Fair Use litigatable?

On Wed, 24 May 2000, Ewan Kirk <ewan.j.kirk[_at_]solent.ac.uk> wrote:
>
> I suppose in theory, yes, but the point about these padlocks that
> seems to have been missed (particularly over here in Europe) is
> that the practical effect of such schemes is to negate the
> operation of fair use. If you look at how strong the padlock is,
> especially with regard to encryption, where ordinary people do
> not have the computing power to crack the protection, then the
> day-to-day effect is that the amount of fair uses being made of
> works protected by these 'padlocks' will be greatly reduced
> basically because the protection prevents you from accessing a
> work, regardless of your intentions, whether you are a pirate or
> a legitimate fair user.
>
> In theory, yes, I suppose you could assert your fair use rights
> in court, but as most people will probably not want to go through
> the protracted legal process just for what may be a few lines of
> text for a quote, the practical effect is that digital rights
> management 'padlocks' have the potential to kill fair use stone
> dead.

    See my response to Chris Mohr for part of my view on this topic.

    On a more practical note, in my work on reverse engineering streaming media software, I have no intention of making my software respect such DRM schemes. Even if I did, as my intention is to provide my software under the GNU GPL, such respect would be essentially meaningless as it could be easily changed by another and redistributed freely. I also expect the decompiler I'm working on to be used to defeat such schemes. I mean, it's essentially impossible to lock out the end user from the data -- encryption's real use is against _third_ parties, not the second party of a communication.

    I believe the only real effect of the DMCA's prohibition on fair use under DRM schemes is to only allow those with in-depth knowledge of computer science or those who have the money to hire such individuals to exercise fair use. To allow that and the entailing restriction on intellectual freedom is, to my mind, unconscienable, and shouldn't be allowed to pass without a (legal) fight. I happen to believe the courts will agree with me, and that it's _their_ (not Congress's) perogative to make that decision of what fair use is in the abstract.

Lynn

Lynn Winebarger
<owinebar[_at_]free-expression.org> Received on Thu May 25 2000 - 13:34:27 GMT