U.S. Rep. Rick Boucher On Why The DMCA Sucks
January 29, 2002 6:55 PM   Subscribe

U.S. Rep. Rick Boucher On Why The DMCA Sucks
News.com has a Great Editorial by Rick Boucher who says traditional "fair use" rights are at the foundation of the receipt and use of information by the American people, and those rights are now under attack.
He goes on to say Congress agreed to a fundamentally flawed bill, which created the new crime of circumvention--a crime divorced from over a century and a half of respect for the fair-use rights of consumers. The DMCA, as enacted, quite clearly tilted the balance in the Copyright Act toward complete protection and away from information availability.

"Consider the implications. A time may soon come when what is available for free on library shelves will only be available on a pay-per-use basis. It would be a simple matter for a copyright owner to impose a requirement that a small fee be paid each time a digital book or video documentary is accessed by a library patron. Even the student who wants even the most basic access to only a portion of the book to write a term paper would have to pay to avoid committing a crime."

posted by Blake (14 comments total)
Sorry, I didn't relize how long that was!
I should've trimmed it down before I posted it.
posted by Blake at 7:02 PM on January 29, 2002

DMCA exists...its going away. I am more afraid of the Security Systems Standards and Certification Act. Too much info for me to post in my lazy state, so check out Stop Pliceware. Lots of other info out there in this, but I don't like posting many sights.
posted by jmd82 at 7:04 PM on January 29, 2002

er, sites.
posted by jmd82 at 7:06 PM on January 29, 2002

Here's the problem: There's no such thing as a right to fair use. Fair use is just a byproduct of current American law -- an actual law for fair use has never actually been carved into the lawbooks AFAIK.

Basically, fair use is not an illegal activity, nor is it specifically legal. Sorta like chewing bubblegum and walking.

When people win on "fair use" issues, such as in the 1984 Betamax case where people were given the right to time-shift TV shows, it's simply because a law that skirts around the whole fair use idea is created (in that case time shifting).

That's why (for example) the only way to go about corrupted CDs or encrypted DVDs is to suggest (in the case of CDs) that they aren't really CDs when they are corrupted to stop computer playback. Saying to the judge that you have a right to make a backup of it means nothing to him because you've never been given such a right under law.

Oh well. Such is life! Perhaps Americans need to let their lawmakers know what they really want -- a right to fair use that comes before the rights afforded by copyright, or the DMCA.
posted by shepd at 7:56 PM on January 29, 2002

Wow. DMCA bad. And he came to this realization by 2002. Impressive. What, did Rick read a paper or something?

Not to be all pointlessly cranky, it's nice that someone is saying something, but why is this happening now? How'z `bout a year ago? Two? Most 15 year olds in this country were aware of the ramifications of the DMCA by then.
posted by dong_resin at 8:01 PM on January 29, 2002

If anyone is curious about fair use and copyright in a digital world, the National Academies has done a nice overview in the report The Digital Dilemma. A discussion of fair use (and what it is, and isn't) is in chapter 4.
posted by Medley at 8:16 PM on January 29, 2002

dong_resign-> most 15 y/o's were aware, but your typical middle-aged person wasn't. Not the most scientific of methods, but i tried to explain it to many adults...they just gave me blank stares. Unless people are computer literate and then some, I have found they don't give a rat's ass about DMCA. I know that is not true in all cases, but nonetheless the problem, i think, rests in the (majority of) voiting public not even really knowing about the DMCA and its ramifications (or, now, laws that are in Congress that are meant to strengthen the DMCA).
posted by jmd82 at 9:29 PM on January 29, 2002

At least finally people are noticing. My father is an attorney. When I brought the "fair use" violations to his attention, he called the Minnesota Civil Liberties Union. They seemed unware.
posted by McBain at 11:46 PM on January 29, 2002


Fair use is indeed part of US Law. The 1908 case Bobbs-Merrill v. Strauss was the first time the SC mentioned something like it, and teh 1909 Copyright Code specifically listed certain fair uses. In fact, the DMCA, in Section 1201, lists many fair uses for which anti-circumvention would *not* be illegal, for instance academic use.

I am against the DMCA, but not for the most commonly thrown around reasons. I personally believe that "the Exclusive Right" listed in the copyright clause of Article 8 of the Constitution refers to the *right to vend*, or to sell, intellectual property. IP that is distributed, but not for profit, should never be allowed to be copyrighted. However, I shouldn't be able to sell bootlegs of The Matrix for my own gain.

Fair Use is a guarantee of Congress, not the courts or Constitution, too. In an 1840's case which slips my name, the SC said that "all copyright is statutory", implying that there is no common law basis for copyright. What this means is that users and copyright holders have *zero* rights beyond what Congress says, as far as the Constitution is concerned. If Congress wanted to say, "no more fair use", they could.

posted by Kevs at 12:15 AM on January 30, 2002

"which slips my name" should be "whose name I can't remember". Dont' read and post at the same time =).
posted by Kevs at 12:16 AM on January 30, 2002

In the UK, authors already get a small fee based on how often their books are borrowed in a libarary.
posted by kerplunk at 1:18 AM on January 30, 2002

But not from how many times it is used inside the library, so the pay-per-view parallel breaks down.
posted by NortonDC at 4:46 AM on January 30, 2002

Where I tad brighter, jmd82, I'd have just said "Why is the average 15 year old in this country more aware of the corporate takeover of our freedoms than our [supposedly looking out for us] government", for that is in fact the point I was trying to make.
posted by dong_resin at 10:17 AM on January 30, 2002

point made!
posted by jmd82 at 3:38 PM on January 30, 2002

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