DMCA and Fair Use [LWN.net]

From:		"Eric Smith" <eric@brouhaha.com>
To:		<letters@lwn.net>
Subject:		DMCA and Fair Use
Date:		Wed, 27 Nov 2002 08:42:46 -0800 (PST)

On the front page of the November 27, 2002 issue of LWN, you write:

    The DMCA, after all, bans "circumvention devices" without care for
    the preservation of fair use

Actually I don't think that's true, although the court chose to interpret
it that way in the 2600 case.

In Section 1201 ("Circumvention of copyright protection systems"),
part (c) specifically states:

    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.

It also provides several other important restrictions:

    (2) Nothing in this section shall enlarge or diminish vicarious or
    contributory liability for copyright infringement in connection with
    any technology, product, service, device, component, or part thereof.

[...]

    (4) Nothing in this section shall enlarge or diminish any rights of
    free speech or the press for activities using consumer electronics,
    telecommunications, or computing products.

Don't get me wrong, I believe the DMCA is a terrible law.  But if the
courts will take 1201(c) into acount (unlike what happened in the 2600
case), at least some of the more egregious excesses will be curbed.

Eric Smith

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DMCA and Fair Use

Posted Dec 5, 2002 11:08 UTC (Thu) by ekj (subscriber, #1524) [Link]

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.

Sorry, you misunderstand this part of the law. It is correct that it says that your other rigths are not affected, but that's not the issue. Let me explain. If your copying was covered by "fair use" before the DMCA, then this part says that DMCA does not affect this, your copying is *still* covered by fair use, you are still innocent of breaking copyrigth law.

However you are guilty of breaking the DMCA itself, with an attached punishment of fines or prison up to 6 months. So, you have not broken copyrigth-law. But you /have/ broken the DMCA-law.

DMCA and Fair Use

Posted Dec 6, 2002 19:31 UTC (Fri) by brouhaha (subscriber, #1698) [Link]

It says that nothing in this section (which is section 1201, Circumvention of copyright protection systems) can affect your fair use rights. Therefore, if you exercise your fair use rights, you are NOT violating the DMCA.

Under your interpretation, section 1201 WOULD be affecting your fair use rights, which it explicitly says it doesn't.

DMCA and Fair Use

Posted Dec 5, 2002 19:46 UTC (Thu) by Ross (subscriber, #4065) [Link]

This is a case where you have rights, but it is not legal to
excercise them. To me, that basically means you don't have
the right in the first place.

It's as if free speech were phrased as:

"You are absolutely free to say anything you like. Oh, and
as a side note, you can only open your mouth if you receive
written permission. Any attempt to open your mouth without
permission will subject to you fines and imprisonment. Have
a nice day."