September 26, 2002

More on copyright, "limited times", and "legal hacks"

I received a nice reply (from Derek Slater, a person on the civil-liberties side) about my last entry, where he gently elucidated many key legal differences between copyright clause interpretation and DMCA interpretation. All good material. I didn't mean to give any impression that I was arguing the situations are legally identical in all respects. What I was trying to do earlier was to examine Valenti's copyright comment in terms of implications regarding practice versus formalism. If "'limited' is whatever Congress says it is.", then in practice, that's unlimited, through the method of making "limited" mean something along the lines of "finite (yet not necessarily reached)". A copyright which never expires in practice, is unlimited for business purposes, whether or not it qualifies as limited in a legal sense. Note I'm echoing the Eldred dissent here:

Second, and more importantly, the Court's construction of the Copyright Clause of the Constitution renders Congress's power under Art. I, s 8, cl. 8, limitless despite express limitations in the terms of that clause. ... Under the Court's decision herein, Congress may at or before the end of each such "limited period" enact a new extension, apparently without limitation. As the majority conceded, "[i]f the Congress were to make copyright protection permanent, then it surely would exceed the power conferred upon it by the Copyright Clause." Eldred, 239 F.3d at 377. The majority never explained how a precedent that would permit the perpetuation of protection in increments is somehow more constitutional than one which did it in one fell swoop.

But again, that's the dissent. What strikes me as interesting here, is the way what I call the "finite yet unbounded" interpretation, works around an apparent limit in limit. A geek would call that a "hack". Valenti seems to argue that copyright could be made permanent in all but name (though admittedly the courts don't think we are at that point yet).

But compare the above dissent passage to what Judge Kaplan said about the DMCA, "effectively controls access" argument, in the DeCSS case:

Finally, the interpretation of the phrase "effectively controls access" offered by defendants at trial--viz., that the use of the word "effectively" means that the statute protects only successful or efficacious technological means of controlling access--would gut the statute if it were adopted. If a technological means of access control is circumvented, it is, in common parlance, ineffective. Yet defendants' construction, if adopted, would limit the application of the statute to access control measures that thwart circumvention, but withhold protection for those measures that can be circumvented. In other words, defendants would have the Court construe the statute to offer protection where none is needed but to withhold protection precisely where protection is essential. The Court declines to do so.

Now, I'm NOT saying that these situations are equally valid, and have an identical legal basis behind them. But there did seem to me to be something of the same "hacking" (in the old-style meaning of the word) spirit in the two arguments. That is, nullifying something in practice, by using a definition which reduces the apparent meaning to one having virtually no real-world significance.

If "effectively" meant "successful", then the DMCA would have no power. And if "limited" means "finite yet unbounded", then "limited times" is no practical constraint.

I suppose my point is that what Valenti is doing still strikes me as "legal hack", even if it's a better-premised "legal hack" than the one tried for DeCSS.

By Seth Finkelstein | posted in copyblight , infothought | on September 26, 2002 10:04 AM (Infothought permalink)

Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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