The Fair-Use Universe
I had this dream where I travelled to an alternate universe.
. . .
Being a resourceful sort of person, I looked myself up. If you can’t trust yourself, then who can you trust, right?
I found that in this universe I worked in downtown Toronto as a lawyer for some firm. Robert J. Young, with letters after the name and everything. I shared a small office in a posh highrise with a nervous fellow named Rodney who always had to rush off to court. “He’s always in a hurry, he is,” I told me.
“Decent view. Well, now that I’m here, I might as well get your legal opinion on something. Can that Commodore over there read a USB memory key?”
“Of course. Hey! I see everyone in your world reads Slashdot too. I guess some things don’t change no matter where you go, eh? Say, in your universe, did VA Media buy out Warner?”
“Uhh, no, not yet. So check out this blog post I’ve been working on. I included a copy of the relevant law. It’s section 1201 that’s the interesting part.”
So we read for a few minutes and told him about blogger Michael Gartenberg who used this handy tool to fix his DRM situation. In any other country, I explained, this would not be a problem, but because he’s in the United States, I figure he’s broken the law. In the eyes of his government, he is no better than those online movie downloading scum.
Ironically, Gartenberg’s firm is one of the groups hired by the media industry to champion the virtues of DRM. It doesn’t bode well for Digital Rights Management technology if the analysts hired to advocate its use are forced to crack it themselves just to restore functionality they paid for.
After while I offered an opinion to me.
“Not the kind of law I usually do, but it seems simple enough.
“I doubt much will come of it as I suspect the feds have bigger fish to fry then some blogger. But if I was his lawyer I’d probably advise him to take the post down, as it is essentially a public admission to violating the section 1201(a)(1)(A) of this Digital Millennium Copyright Act you showed me. He could be risking a civil action. The fact that the DRM scheme was an inconvenience to his enjoyment of his book is likely not a solid “fair-use” defence. Since this part of the act only came into force in 2000, I doubt there is all that much DMCA case-law yet to look to for a defence. You’d have to dig up all kinds of other fair-use cases. Could be tricky.
“Also, even though he removed his link to the hack tool, he may still not be protected from litigation arising out of a violation of section 1201(a)(2)(A) as the link from the original post is easily resurrected from various Internet caches. Sub-section 2 makes it a crime to traffic in circumvention tools and providing a link could be seen as this, even if the link was removed after the fact. I don’t think a plaintiff could make it stick, but they might try it anyway.
“And you wouldn’t want to screw around with violating this law. 5 years in jail for copyright violation? Nasty. And they have laws like this in your Universe?”
“In the United States, anyway,” I explained to the lawyer, “but not so much in Canada. Copyright law is sort of ambiguous in my Canada.”
“Same here, but not for much longer. Bill C-60 will probably pass by October and make our laws mostly compatible with the U.S. It’s our own version of the Digital Freedom Act of 1995. Basically entrenches the legal right to copy anything for non-commercial use. The Chinese are still pissy over it, they still threaten sanctions over it, but everyone knows they’re a has-been superpower anyway.”
“Really?”
“Oh yeah. The passage of the Digital Freedom Act ushered in this golden era of entertainment and research in North America. So profound was the effect on American culture, that President Clinton even mentioned the upcoming tenth anniversary in her State of the Union Address. Following her brilliant televised defence of the same-sex marriage bill, she’s become so popular there has been talk of amending the U.S. Constitution so she can run for a third term, just like the President can here.”
“The President . . . and who’s our president, then? You know. . . I don’t need to know that. Well, nice talking anyway, but I have to go. Thanks for the legal opinion.”
. . .
Unfortunately we live in this crappy universe where fair-use is becoming increasingly criminal. I’m not a lawyer in this one, and even if I was, my advice would probably be the same ;)
So my only real advice to Americans who are not down with things like DRM is to flee the United States before they get you. I know you love your country like I love mine. But increasingly, your country does not seem to be loving you.
