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October 13, 2005
Hacking Is Not Fair Use
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Earlier this week I wrote about how, despite claims to the contrary, DRM Is Not a Contract in which you "agree" to give up all of your fair use rights for the dubious privilege of becoming a hapless pawn in the digital media wars. Now Derek Slater has a thoughtful follow-up explaining that Hacking Is Not Fair Use -- or, to be more precise, that if you oppose reforming the DMCA to allow people to circumvent DRM to make lawful uses of digital media, you can't pretend you're doing anything but opposing lawful uses.
Writes Derek:
[Patrick Ross's article] reveals why many DMCA supporters truly laud the law - not because it prevents widespread infringing file-sharing (it doesn't), but rather because it drastically shrinks fair use. ...Here's the key passage from Patrick's article:
"But if HR-1201 becomes law, every consumer could legally hack any TPM by claiming fair use, and as fair use isn't codified, there would be as many definitions of it as there are consumers. Consumers would be legally sanctioned to break their contracts with the content provider." (emphasis added)
Of course, fair use is codified. It's just not a set of bright line rules, and that's probably for the best. That's how we get innovation like time-shifting or Google Print - who could have predicted such uses ahead of time, distinguished them from related but unlawful uses, and clearly protected them in the statute?
Regardless, just because fair use is unclear doesn't mean that it permits everything. HR1201 only permits circumvention for lawful uses; if a claim of fair use were unfounded, consumers would still be liable.
In other words, HR1201 is about permitting fair use, not "hacking," piracy, or anything else.
So why should Ross and other DMCA supporters want to restrict lawful uses? Because restricting lawful use can be rewarding. You can't sell back fair uses of digital media unless you first take them away.
Derek has more, including a link to previous post that subtly encourages DMCA supporters to come clean. Rational people can agree that the DMCA is a failure [PDF] at preventing mass copyright infringement on the Internet -- its ostensible purpose. So what is it "good" for? And is it possible to have an honest discussion about that?
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1. Ygor Valerio on October 13, 2005 8:06 PM writes...
A couple of news from abroad: here in Brazil, we're most surely way behind in terms of court interpretations. There is a project to make the "fair use" part of our copyright law a little vaguer, in order to boost the judge's space to legally define what is and what isn't fair use.
Permalink to CommentI completely agree with the fact that the law has to be more abstract in order to allow courts to seek true justice in the concrete case, but I don't think that's quite the case here. I don't think most judges are prepared enough to do so, specially when things like software and music are involved, in which case a more concrete definition on what is and what isn't fair use seems to be more secure for authors in general.