RE: DMCA alternatives

[Peter Suber <peters@earlham.edu>]

subject = "RE: DMCA Alternatives"

 [Rick Anderson wrote:]
 >[Jeffrey Earnest wrote:]
 > > No, we don't want to make
 > > breaking and entering legal, even if the reason we want to be inside is
 > > completely innocent. But, that being understood and agreed upon does not
 > > preclude us from objecting to and attempting to invalidate a law that
 > > makes one a criminal for circumventing technology.
 >
 >I guess the whole point of my analogy was to illustrate an argument that
 >is exactly the opposite of yours, Jeff. It seems to me that
 >"circumventing technology" is indeed a problem if it means doing something
 >that is substantially like breaking and entering. I keep trying to think
 >of another area of law that grants one person the right to lock something
 >up while simultaneously granting someone else the right to pick the lock,
 >and I can't think of one.

 I believe that both sides are right here, and do not contradict one
 another. On the one hand, there is no area of law in which one person has
 a right to lock something away and everyone else has a right to pick the
 lock; on the other hand, the kinds of locks we're really talking about
 here, behind the analogies, are legally objectionable.

 One way to frame the issue is whether copyright holders should have the
 right to put absolute or impenetrable locks on their copyrighted digital
 content in the first place. For ordinary property, like land and
 buildings, property owners have such a right, though even here there may
 be exceptions for entry by police and firefighters. But intellectual
 property is only quasi-property. (I'm sure that readers of this list
 already know all this, so I'll be brief.) Two limitations in particular
 make it less property-like than land or buildings: fair use and limited
 terms. Fair use means that others have a limited right of access and use;
 limited terms means that the property passes into the public domain after
 a period of time. Neither limitation applies to real property and for
 good reason. The problem with exceptionless copy protection on digital
 content, and laws that criminalize circumventing it, is that they treat
 intellectual property like real property, remove the limitations that make
 it merely quasi-property, and deny users their fair-use rights.

 Legally, this is a breathtaking category mistake, confusing two distinct
 legal concepts or collapsing the distinction between them when the
 distinction has been carefully worked out over many years by many courts
 as a fair and necessary reading of the constitution.

 In principle we could satisfy both the rights of IP owners and fair-use
 rights of IP users with a selective lock --one that allows fair-use
 access, blocks everything else, and automatically dissolves when the
 underlying copyright expires. But for now I think we should assume that
 this is impossible. (I'd hold out the hope that creative programmers
 could save the day, but "fair use" is too ill-defined to regulate with
 code less flexible than human judges.) If it is impossible, then it seems
 at first that we face the stark choice between unselective locks and no
 locks at all, radically tilting the balance of copyright interests either
 in favor of owners or in favor of users. So far, Congress and the courts
 have chosen the former. The beauty of Rick Boucher's bill is that it
 shows a very reasonable third way; Congress and the courts have been
 fooled by a false dilemma. (More below.)

 > > That is the issue,
 > > which Rep. Rick Boucher has understood: "It's a broad overreach to
have a
 > > person arrested under the federal criminal laws simply because they
made
 > > software that circumvents a technological measure, I think the
current
 > > case adds impetus to the growing effort to fashion an amendment to
the
 > > DMCA that would restore the classic balance (of fair use rights),"
 >
 >Actually, Boucher is addressing a different issue: that of criminalizing
 >the creation of software that could be used for hacking. It seems to me
 >that what should probably be criminalized is the hacking behavior itself
 >(regardless of whether the hacking then results in a copyright
violation).

 Boucher's bill would legalize circumvention except when there is an intent
 to infringe copyright. That would legalize circumvention in pursuit of
 fair-use rights, which is the point. In the absence of magical
 technology, which would allow fair-use access and block everything else,
 this legal solution is as close as we may get to a proper balance of
 interests. The only reason why Boucher's bill isn't perfect, and why
 magical technology would be even better, is that circumvention is too
 difficult for ordinary users who wish to exercise their fair-use rights.

 ----------
 Peter Suber, Professor of Philosophy
 Earlham College, Richmond, Indiana, 47374
 Email peters@earlham.edu
 Web http://www.earlham.edu/~peters

 Editor, The Free Online Scholarship Newsletter
 http://www.earlham.edu/~peters/fos/