June 19, 2003

DMCA, fair use vs "access to copyrighted material"

I don't know how long I should drag out the Eldred discussion with Derek, but the following part motivated me to write yet another item on the topic:

That's why I don't really think of this discussion as people naively reading too much into the Eldred opinion. I look at it as a starting place for the next person who gets sued.

As I just said, cough, cough, cough ...

It's exactly because of being a starting place for the next person who gets sued, that I think people are naively reading too much into the Eldred opinion!

Quite frankly, nothing is worse for such a person than a pundit-lawyer on a hobby-horse, who needs a reality-check (nothing personal to anyone involved in this discussion, just a comment/example from more "intense" times).

I think I've found a fairly concise way of illustrating where I think there's a small (very small) gain, and a large gap:

Here's the good news, regarding this part of the 2600 Appeals decision:

Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement. ...

[And the fair use discussion in Eldred fits right here. One could say that it establishes there is such a requirement. Eldred at least unarguably adds strongly to the pile of evidence in favor of that point.]

Here's the bad news. Contrast the key fair use paragraph in Eldred here:

Second, the "fair use" defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U. S. C. 107, the defense provides: "[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The fair use defense affords considerable "latitude for scholarship and comment," Harper & Row, 471 U. S., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569 (1994) (rap group's musical parody of Roy Orbison's "Oh, Pretty Woman" may be fair use).

With this pronouncement in the 2600 Appeals decision:

A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original.

Where is there anything, anything, in what was said in Eldred, which screams that a Supreme Court opinion on the DMCA would reject that baleful phrase "Fair use has never been held to be a guarantee of access to copyrighted material ..."?

Try it as a positive assertion: "The Eldred decision establishes the contention that fair use is a guarantee of access to copyrighted material ...". See how stretched it is? How much it sounds like wishful thinking?

By Seth Finkelstein | posted in copyblight , dmca , legal | on June 19, 2003 11:32 PM (Infothought permalink) | Followups
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