DMCA vs fair-use

DMCA/fair-use blog party!

Donna and Derek and Kerr and Balkin and Solum and Frank ...

Let me jam too.

I think understand what Balkin is saying, and also what Kerr is saying.

Here's the deep question, which is being batted around:

Is fair-use a substantive limit, or a technical exception?

The side Kerr is arguing, what some call "affirmative defense", I call the "technical exception" view. That is, it conceives of fair use as having no overarching meaning, no deep significance. It's just a procedural reply in some particular sections of copyright law. The implication here, being that if one creates a new section of the copyright law - such as the DMCA - there's no carry-over, no principle to apply. The sections of the laws are partitioned, and never the twain shall meet.

The side Balkin is arguing, I call the "substantive limit" view. Fair use is an aspect of the First Amendment. It's intrinsic to any copyright-associated law by virtue of drawing power from the First Amendment's scope and reach, as a Constitutional provision. It's a bit like an all-pervasive Holy Spirit that way (the DMCA makes baby Jesus cry).

Now, Balkin is reading the Eldred decision as having a kind of genuflection to the pervasive spirit of fair use. How he does this, from perhaps the largest copyright-grab in history, is awesome to behold. The idea is that the court says the copyright-grab is OK in part since it didn't change fair use:

But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

So, goes the thought, this is a shining reaffirmation of the importance of fair use as substantive limit. And that strengthens the argument of those who argue that the DMCA is a restriction of this substantive limit. Follow the reasoning?

Frankly, this strikes me not as making lemonade out of lemons, but rather, wading through a pile of manure and trying to find a pony.

The cyanide in this lemonade is that it in fact doesn't help much against the "legal hack" that the DMCA doesn't affect fair use:

* (c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

So the DMCA defenders are going to argue that in fact "[the DMCA] has not altered the traditional contours of copyright protection". Why? It says so right there, see? "Nothing in this section shall affect ...". But, respond the DMCA opponents, fair use is a substantive limit! No, say the DMCA defenders, fair use is a technical exception ...

Roundabout, here we come, right back where we started from ...

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