July 31, 2002

2002 July 31 Links [6:59 am]

(entry last updated: 2002-07-31 23:11:32)

A call to arms from Siva Vaidhyanathan; HP acts to “Felten” SnoSoft

And it looks like Charles Sims is in a snit over Siva’s piece. Donna has posted a set of questions - here’s my first pass at thinking it out:

Viadhyanathan, Sims and Fair Use

An odd sort of argument has arisen around the posting of Siva Viadhyanathan’s article in the Chronicle of Higher Education. Charles Sims, the lawyer who represented the MPAA et al. in the 2600 suit has suggested that Declan’s posting was tacit support for a position that he says is completely unfounded. In particular, Sims argues that the DMCA is all about access. not fair use - in fact, all the fair use that one had in 1976 (when fair use was enshrined in law - before then it was a construct of case law) is still available.

It’s an interesting point, and is defendable only if you accept a key assumption: the sale of a copyrighted work includes an inferred agreement to access the copyrighted content in strict accordance with the technologies envisioned by the seller of the work at the time of the transaction. This is an interesting extension of the list of exclusive rights of copyright:

  • Copying (granted 1790);
  • Distribution (granted 1790);
  • Derivative works (franted 1870 and 1909);
  • Public performance (granted 1856 and 1897);
  • Public display (granted 1976);
  • Attribution and integrity (granted 1990);
  • Fixation and trafficking in sound recordings and music videos (granted 1994);
  • Technological protection measures (granted 1998);
  • Copyright management information (granted 1998);
  • From The Illustrated History of Copyright; Edward Samuels; St. Martin’s Press; New York, NY; 2000

By my reading (and, warning, I am “unencumbered by a formal legal education”!), I don’t quite see the right that Sims asserts in this list. I understand the technological protection measures, but I am surprised that this can be essentially turned onto its head, suggesting that the acquisition of a copyrighted good with an embedded protection measure implies that the buyer has agreed only to use specific devices/technologies to access copyrighted works.

On the other hand, I suppose that one could credibly make this argument - after all, Mr. Sims has done so, quite successfully. But, note what it implies - a new limit on creativity has been erected. If we believe Mr. Sims, the government has given copyright holders the right to prescribe the application of technology by others.

A huge leap has happened, if you believe Mr. Sims. The list above is a list of what one can exclusively do if one is the holder of a copyright. Mr. Sims is asserting that the DMCA has added an exclusive right on how one uses copyrighted material. This is a terribly dangerous transition - what is easy for a government or a court to understand, to regulate, to identify. Regulation of how seems to be a toxic notion of control when creativity is at stake. Consider, for example, if it had been against the law to interfere with the motion of a turntable - “scratching” and other roots of hip-hop would have been illegal! Or, suppose the MPAA decided that TVs shouldn’t have hue, tint or contrast control because it changed the image on the screen.

At ILaw this year, Larry Lessig showed those of us who have never bought an eBook how each one comes with a list of what one can and cannot do with an eBook - copy text, print pages, allow the use of a voice synthesis reading program, etc. His lecture on this topic culminated with him showing the list of restrictions on The Future of Ideas - Larry cannot copy, print or “read aloud” his own book! We all laughed - it was an illustration of how preposterous these kind of technological constraints can get.

But, it’s not just preposterous - it is also an incredibly arrogant attitude for a publisher to take. How dare they assert that they have the right to tell me how to use their product! How dare they choose to constrain my ability to do, to use, to create.

And, worse, how can a lawmaker, whose Constitutional imperative is “To promote the Progress of Science and useful Arts,” assert that Progress can, and should be, constrained by the owner of copyrighted content.

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