Re: Kaplan's Opinion [Was: Space-Shifting]

>>> Bryan Taylor <bryan_w_taylor[_at_]yahoo.com> 10/17 10:53 AM >>> wrote:

• Tyler Ochoa <tochoa[_at_]LAW.WHITTIER.EDU> wrote:

> I'm sorry, I don't see this as a fair use case.  Do I think that the
> DMCA and encryption have the potential to restrict fair use and
> prevent exploitation of works in the public domain?  Yes.  

Doesn't this contradict the Constitutional purpose for having copyright at all? No copyright protection at all is better than no fair use. <<<<<

But I don't agree that the DMCA results in "no fair use." I said it has the POTENTIAL to RESTRICT fair use. That concerns me, & I don't like it; but it does not necessarily make it unconstitutional.

>>>>>

> [I wrote:] Do I think that movie studios are overreaching, greedy bastards > who are using DVD encryption to protect their traditional market > segmentation and make more money? Yes.

[Mr. Taylor replied:] Is this what Congress created the DMCA to do, or was it to benefit consumers by fostering internet commerce in copyrighted material? Is CSS "access control" or "use control"? <<<<<

There is no difference; access control gives you de facto use control. I think Congress approved the DMCA to do exactly what the studios and the record companies who contribute to their campaigns wanted the DMCA to do. The notion that Congress passed the DMCA to benefit consumers is laughable.

>>>>>

[I wrote:] > Do I think that a consumer has the right to decrypt DVDs so that > he/she can view them on a Linux machine? No. If you want to view > a DVD, buy a DVD player. If it doesn't work on a Linux machine, > tough. I don't see anything in the Constitution that > gives you the right to view DVDs on a Linux machine.

[Mr. Taylor replied:] Do you see the words "their ... Writings"? The player is not part of the writings, which are solely the copyrighted movie. If the copyright monopoly can be ad hoc expanded to include protection for whatever non-writings purportedly increases the profits of the copyright industry, then copyright is evil and must be abolished. Find me one case that supports expansion of the copyright monopoly to protect something not part of the work itself. One. <<<<<

Congress asserts that the DVD players are being regulated under the Commerce Clause power, not under the Copyright Clause. We can agree that monopolies are bad, but Congress has the power to abolish the Sherman Act completely and allow whatever monoplies it wants to. It is restricted in its ability to do so only by the Constitution. If Congress wanted to ban DVD players entirely, I doubt it would violate the First Amendment so long as it did so for a reason not related to the suppression of expression, and there were still other means that were available to view the content that is protected by the First Amendment.

>>>>>

The motion picture industry has tried to bridge monopoly control from movies to players twice before. In 1917 they did so in Motion Picture Patents v. Universal Film Mfg. Co., 243 U.S. 502 (1917) using patents, but failed. In 1948 they did so in U.S. v. Paramount, using copyrights, but failed again. This time they rely on some made-up form of protection that is totally at odds with the Constitutional purposes for intellectual property and totally at odds with the stated intent of the statute, which is to engize e-commerce trading online. <<<<<

It IS a made-up form of protection. ALL forms of protection are made up, so I fail to see how that condemns it. I don't think it is "totally at odds with the Constitutional purposes for intellectual property"; at worst it is partially inconsistent with some of the purposes. It may be totally at odds with the stated purpose, but that doesn't make it unconstitutional either.

Again, I don't like being put in the position of being the defender of the DMCA here. I don't like the DMCA. I think it's bad policy. But I don't think it is unconstitutional, and I think public domain advocates are being unrealistic if they think the courts are going to save them from Congress in this instance.

>>>>>

The DMCA has a reverse engineering clause 1201(f) which allows circumvention in order to enable interoperability. It is only through an amazing act of sophistry that Kaplan avoids this exception. <<<<<

I agree that is the weakest part of the opinion.

>>>>>

> [Judge Kaplan wrote]: "Indeed, even academic commentators who take the extreme position > that most injunctions in intellectual property cases are > unconstitutional prior restraints concede that there is no First > Amendment obstacle to injunctions barring distribution of copyrighted> computer object code." Slip op. at 28.

Copyright cannot stop an author from publishing his own original code. DeCSS is copyighted by Jon Johansen and Derek Fawcus. It is their original expression. Judge Kaplan's quote makes it sound as if the author of the object code is objecting. That's false. <<<<<

Copyright isn't stopping the author from publishing his own code. The DMCA is stopping them, and despite the name, the DMCA is not a copyright law. Their code IS original expression; but it is also a functional machine. Judge Kaplan very clearly concludes that the functional aspects outweigh the expressive ones, and that distribution of the code can therefore be enjoined. Taken out of context, the quote may be misleading; in the context of the opinion, I don't think it is.

>>>>>

And this argument is utterly lame. Why should one form of expressive literary work (software) be treated any differently than another? <<<<<

Software can be treated differently from other forms of expression because software has functional aspects that can lawfully be regulated, regardless of the expressive aspects that are protected. I can burn a flag to express a political point of view; but I can't burn the White House to express the same political point of view. The First Amendment protects freedom of speech, not freedom to program a computer to do anything that you want. A computer virus is also a form of expression; that doesn't make distributing it lawful.

>>>>>

Why cite "experts" instead of making the point directly? <<<<<

He DOES make the point directly; and AFTER he has done so directly, he cites additional authority that supports his view. He isn't citing so-called experts who are simply movie-studio shills to establish the point; he is citing actual experts who happen to be strong public domain and First Amendment advocates to show that even experts who think that the First Amendment should be taken more seriously in IP cases don't think that it is a barrier to an injunction in this type of case.

>>>>>

What is the criterion now for deciding which forms of communicaton can be censored? It appears to be "those forms that come before Kaplan can be." Kaplan should have recused himself and I question his ethics. <<<<<

The criterion is simple: forms of communication that also constitute the functional means of operating a machine can be enjoined.

More fundamentally, you are way out of line here in criticizing a federal judge who went out of his way to take seriously an argument that most federal judges would have rejected out of hand. You may not agree with Judge Kaplan's opinion, but suggesting that he behaved unethically is beyond outrageous.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Thu Oct 19 2000 - 22:30:46 GMT