Users and losers in the conflict between DMCA and fair use

Derek Slater has an extensive post on After Eldred, and comments in it:

Oh, and as for Seth's argument about the "DMCA does not limit fair use" clause - I don't buy it.  Corley, for good reason, did not read that clause to mean that the DMCA provided a fair use exception.  Its designers did not intend such an exception.

Indeed. In fact, the Memorandum Order says outright:

If Congress had meant the fair use defense to apply to such actions, it would have said so.

But I argue this is key for exactly the reasons being discussed, what Frank phrases as "how to treat technology in relation to expression". I semi-agree that the "The court clearly had trouble figuring out how to treat technology in relation to expressions". But the trouble seemed to me more in fitting the legal theory to the outcome they saw as absolutely necessary. And hence we get back to practical fiction that the DMCA does not limit fair use.

In a nutshell:

I suppose you can make those technologically inconvenient fair uses, in the abstract. But it's greatly altering the way you experience the content.

And thus we return to the DMCA argument is that there's no particular right to experience content (i.e., DMCA not affecting fair use):

Although the Appellants insisted at oral argument that they should not be relegated to a "horse and buggy" technique in making fair use of DVD movies,36 the DMCA does not impose even an arguable limitation on the opportunity to make a variety of traditional fair uses of DVD movies, ...

36 In their supplemental papers, the Appellants contend, rather hyperbolically, that a prohibition on using copying machines to assist in making fair use of texts could not validly be upheld by the availability of "monks to scribe the relevant passages."

Note that phrase even an arguable limitation. What we are doing here is reiterating at great length, with many variation on the theme, the fundamental conflict in views of fair use: substantive limit, or technical exception? In terms of a procedural reply to a copyright infringement charge, sure, there's no limitation. But regarding real-world impact on ability, such a statement would be ludicrous.

People are going ga-ga over one vague phrase in Eldred, "the traditional contours of copyright protection". But there's pages and pages of dismissal of fair use, substantively, in Corley.

This reality obliges courts considering First Amendment claims in the context of the pending case to choose between two unattractive alternatives: either tolerate some impairment of communication in order to permit Congress to prohibit decryption that may lawfully be prevented, or tolerate some decryption in order to avoid some impairment of communication. Although the parties dispute the extent of impairment of communication if the injunction is upheld and the extent of decryption if it is vacated, and differ on the availability and effectiveness of techniques for minimizing both consequences, the fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided.

In facing this choice, we are mindful that it is not for us to resolve the issues of public policy implicated by the choice we have identified. Those issues are for Congress. Our task is to determine whether the legislative solution adopted by Congress, as applied to the Appellants by the District Court's injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.

I'd say this is sadly the inverse of "splitting the technology from the expression, divorcing the use of code from actual human experience." What the court seems to say, up and down, throughout the entire decision, is basically, in my view, that if they accept a First Amendment or fair use defense of code, in practice, it's going to allow too much to get through. So it won't be allowed.

We can't split the difference with source code versus object code. Again, in practice, the court is concerned with the effects, so source versus object is immaterial. My reading of it is that they "got" the implications, they understood all about technological mediation of experiential aspect. And they came out on the issue that, bluntly, users lose.

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