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{Friday, January 17, 2003}

My report on the Eldred decision is here. The gist of the piece is that the tech and activist communities are angry in the extreme about the decision and that a nascent movement may be forming. The article on O'Reilly Net is here.

Here are a few comments I've received today:

Remember the days when we could get away with just about anything on the Internet? What happened to our cyber "don't fence me in" open range? I think part of the problem is that we've all become far too obedient. In the old days pirate sites would have popped up all over the world mirroring "prohibited" content. Now the record or movie industry barks and we all fall into line.

As for this copyright ruling - and I say this as a published author with a stake in reasonable copyright laws - After 50 years the material should move into the public domain. This is particularly important for the written word. Maybe it's time to start misbehaving again.

--Steven Pizzo, investigative reporter and general pain in the ass

I thought your article on Eldred decision was great. There was one
misleading point though. You claim the thrust of Lessig's argument rests on
the limited times clause, and in describing he clause say "...ceding to
Congress the right to decide the length of the copyright terms for new

Unfortunately, the limited times clause does not specify "for new works"
which would have made the case almost unarguable. Not really sure how many
will catch this, but it is a bit misleading for understanding the
intricacies of the case and decision.

-Chandler McWilliams

posted by Richard Koman 10:43 AM Comment

{Tuesday, January 14, 2003}

I received this email response from Scott Barnett, asst. prof. of communications at Connecticut's Quinnipiac University, regarding my interview with Rick Boucher on his DMCA-altering bill.

Sorry but Rep. Bouchard needs to read the statute on Fair use a little closer before he can say the DMCA infringes on the "fair use" of the individual.

for reference:

Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Thus, nowhere herein do we see any room for "personal" use of materials. There is NO "Fair use" as Bouchard describes, or perhaps understands it. Fair use doctrine was created for educational, critical, and perhaps satirical use and analysis of works, not for you and me to make basement tapes. Other aspects of Title 17 may refer to such uses, but they are not defined as "Fair Use."

What perhaps is being lost in all this is that we are growing a generation of electronic free wheelers, who think open source means open doors to any and everything. I teach students to make creative works and also try to teach them respect for the creative works of others...someday it could be their masterpiece being distributed and dissected without renumeration or credit. Yet despite the limitations of current copyright law, and the onerous statute DMCA, it is appalling to see bandwagon legislators defending their quick fix bill upon ill advised and poorly researched notions. Mr. Bouchard may have a point about the DMCA as poor lawmaking, but he should do his homework before framing the justification of the fix on "fair use." Too many people, educators, journalists and legislators alike have all erred in their definition and understanding of fair use, to the detriment of a generation of Internet and multimedia users and creators.


Scott B. Barnett

Asst. Professor of Communications

Quinnipiac University

posted by Richard Koman 9:14 PM Comment

The wires are abuzz today with news of an alliance between the music business and the high tech industry. The Chronicle story is as good as any. The conventional wisdom here is that the deal pretty much kills a chance for the Hollings bill, although Valenti says the movie studios are still pushing for it. Meanwhile, it seems unlikely that the tech companies will continue to stand behind the Boucher bill, which would amend the DMCA to make it legal to circumvent copy-protection for legitimate home copying purposes.
posted by Richard Koman 9:09 PM Comment

{Monday, January 13, 2003}

Declan's legislative preview article gives a fascinating look at things to come in DC. Besides the Boucher bill, ominous news that the Hollings bill may be reintroduced. McCain sounds dubious about it, but more over "mandates" than on public interest grounds.
posted by Richard Koman 12:54 AM Comment
Nice analysis of the Lexmark case by Ed Felten
posted by Richard Koman 12:47 AM Comment
FCC chairman Michael Powell called TiVO "God's machine," the SF Chronicle reports. Powell obviously believes there is a huge benefit to the public in being able to copy tv shows, which might make him look askance at the broadcast flag making its way through Congress. But does the flag really inhibit personal copying? I'm sure the television producers would like it too, but Rep. Boucher (see link below) explains in some detail that flagged broadcasts would still allow home copying. Let's look at the legislation in more detail.
posted by Richard Koman 12:44 AM Comment
Law Meme has an excellent analysis of the Eldred case written by Yale law student Benjamin Gross. Gross notes the weakness of Lessig's 1st Amendment argument and the relative strength of his pure Copyright Clause argument. He finds that the 1st Amendment argument weakens his overall case, and that the Court is unlikely to create "legislative chaos" by simply overturning CTEA.

He predicts remanding the case back to the Appeals Court "in accordance with Lessig’s suggestion in the Petitioner’s Brief that retroactive extensions should at minimum “be tested for ‘congruence and proportionality’ to the ends of the Copyright Clause.” This compromise approach would allow the Court to avoid the legislative chaos resulting from a flat-out abolition of the CTEA, while allowing for further consideration of the scope of Congressional authority. If the lower court rules that the CTEA is overly broad to serve its ultimate purpose, it could reject the irrelevant portions and present a more narrowly tailored piece of legislation better able to accomplish the government’s stated goals."

posted by Richard Koman 12:27 AM Comment

{Sunday, January 12, 2003}

Here's a link to my interview with Rick Boucher. Boucher introduced a bill that would rewrite DMCA to allow circumvention of copyprotection technology for legitimate personal and fair use copying. In the interview he says: "What I am seeking to do is to restore fair use and make it as applicable in the digital era as it is with analog technology ... I think the Supreme Court got it right, and I want us to return to that time-tested and well-honored and time-tested and very practical doctrine that says that all you have to do is have a substantial noninfringing use and then you need not fear future liability. ... The DMCA is one of the greatest barriers to innovation that Congress has ever adopted, in my opinion. ... And my bill doesn’t do anything that would make it more or less likely that people bent on committing piracy are going to commit it. What my bill does is free the innocent consumer to use digital media in the way in which he wants to use it. ... [With broadcast-flag-marked content, users] can make unlimited copies within the home but they cant upload it to the internet. But that’s fine; we don’t want internet distribution of this stuff anyway, and I don’t think we ought to have internet distribution of digital content that’s purchased in the store. Its fine to continue to keep that illegal. ... I’m just confident that the public interest and the technology industry standing together will win."
posted by Richard Koman 11:43 PM Comment
Under the category of circular links, it's nice to see my report on the Creative Commons launch blogged on the Creative Commons site.
posted by Richard Koman 10:08 PM Comment