CyberTech Rambler

October 7, 2005

Digital Right Management and Fair Use

Filed under: Uncategorized — ctrambler @ 6:32 pm

Patrick Ross, VP of Progress and Freedom Foundation, an organization that is known to work with the Music Industry (See
SourceWatch information), recently published an article arguing that the ability to circumvent Digital Right Management measures (He calls it “Technology Protection Measure”) is wrong. In particular, he is against a bill (HR-1201) proposed by Congressman Rick Boucher (See Congressman Boucher’s opinion piece).

What do I think about the article? Another classic “Framing” exercise. Rather than tackling the issue Congressman Boucher raised, i.e., the purpose of the Bill is to readdress the imbalance that tilted towards complete protection and disregards towards fair use, Mr Ross decided to launch a tirade praising how “Technology Crippling Measures” are good since they provide more revenue.

Its true that these damn Technology Crippling Measures can create new business models for distribution of copyrighted content and have a place in the market. However, the way these measures are created ignore completely the notion of Fair Use. It is not the content owner’s right to decide what constitute fair use. It is that of the law courts. Moreover, over and over again it is demonstrated that the content owner’s notion of fair use is flawed and tainted. To say that one cannot circumvent technology measure even if one can demonstrate fair use is the same as saying that content owner is allow to infringe on the general public’s “Fair Use” rights. Only one sentence for this: IT IS WRONG, and should be illegal. Until this is corrected, i.e., when the public rights to fair use is restored in these technology measure, any technologically-based method MUST be opposed and should not be allowed.

Preventing piracy is something every Intellectual Property owner have to do since day 1 of the first IP law. All the while, the definition of Intellectual Property is being defined and redefined to meet emerging challenges. The basic IP laws are surprisingly robust enough to deal with all situations. The basic spirits of IP laws had not changed. Rather, it is human greed that had lead to the skewing of IP laws to unfairly favour the owners of IP. The situation needs to be corrected. And that is what Congressman Boucher is proposing to do.

Restricting public’s fair use right is a sure way to stifle innovation. Behaviours of big content providers had repeated demonstrated their willingness to stifle innovation and free speech. This include the attempts to use it to stifle Free Speech (Professor Ed Felten and SDMI case) and the imprisonment of a Russian Programmer when he went to the United States on something he did legally in Russia as a results of someone else decision to distribute his program illegally in the United States. Congressman Boucher correctly identified these as the weakness of existing laws and it is worth correcting. I will suggest to Congressman Bouncher to add a case where a company’s failed attempt to apply DMCA to garage door remote control as another case study.

Any technological measure to prevent law-breaking is good provided it also respects other peoples’ right as well. Otherwise, it is better not to have it at all, since it is supporting one evil over another.

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