Re: Fair Use litigatable?

On 5/25/2000, Bernard Rous <rous[_at_]hq.acm.org> wrote:
>
> Does Fair Use imply a right to browse?
> Don't all the uses of a work that are considered
> fair assume that the work has first been legally acquired?

One of the arguments that I made in my testimony before the Copyright Office regarding their anti-circumvention rule-making is that we cannot assume that DRM software and hardware will 1) exercise controls identical to the license agreement between vendor and user 2) work properly. This may not be a "fair use" argument, but Laura Gassaway was able to give an example in which the DRM controls ceased functioning due to an error and the vendor could not correct it for about 7 weeks. The question is whether "breaking" the DRM during that interval in order to gain access to legally acquired and licensed materials would violate the DMCA. I had an example of the #1 case, where a file that I downloaded was limited in a way that was not part of any license agreement between myself and the provider. In our musings about this topic we have to include the factor that technology is imperfect, which adds another dimension to the problem.

I think that the folks from the copyright office suggested that this is a license issue, not a fair use issue, but I know that many people do not feel that licenses entirely replace copyright law. It's the old: "everything that is not permitted (in the license) is forbidden" argument. Is this our conclusion?

Karen Coyle                    karen.coyle[_at_]ucop.edu
  University of California Digital Library
  http://www.kcoyle.net/       510/987-0567
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