RE: [dvd-discuss]Lexmark Decision

[Ole Craig <olc(at)cs.umass.edu>]

On 03/26/03 at 14:30, 'twas brillig and Jim Bauer scrobe:
> >> 
> >> Can one have a right with no opportunity to exercise it?
> >> 
> > 
> > That is indeed the central question at the crux of the
> > entire DMCA issue.  We have the _right_ to fair use
> > but the DMCA can be used to deny us the opportunity
> > to excercise that right by inserting a TPM between us
> > and the work.
> 
> This is like having the right to vote, but being
> prohibited from going to the place necessary to cast
> your vote.  If you are prohibited from excerising a right,
> then you really do not have such a right.

	Do we in fact have a right to "fair use"? I believe I was
corrected on that very point at some time on this list, perhaps by
someone who does not have to pepper his/her posts with "NAL"
disclaimers...

	AIUI at that time, "fair use" is only a defense to an
accusation of infringement. In a DMCA case infringement is not reached
(because of the statutory prohibition on circumvention) so all the
pers^Wprosecu^Wplaintiff has to prove is that the defendant
circumvented. Since "fair use" is NOT a defense for circumvention, it
cannot be raised.

	If the above is correct, it would appear to me that "fair use"
as commonly used within the context of copyright law, is NOT a
"right". Therefore, we don't have a statutory right to "fair use"
except as one might read into the spirit of the copyright law itself.
This of course is completely Bad, Wrong, and Fucked from the non-legal
viewpoint, but that fact doesn't seem to have been a barrier to the
copyright industry so far, now has it?


	Somebody *please* correct me if I'm wrong.

		Ole
-- 
Ole Craig * UNIX, linux, SMTP-ninja; news, web; SGI martyr * CS Computing
Facility, UMass * <www.cs.umass.edu/~olc/pgppubkey.txt> for public key
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