RE: [dvd-discuss]Lexmark Decision

["Richard Hartman" <hartman(at)onetouch.com>]

It isn't.  That's when you sue them for damages
for malicious prosecution.


-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi/sec: not just a good idea, it's the LAW!



> -----Original Message-----
> From: microlenz@earthlink.net [mailto:microlenz@earthlink.net]
> Sent: Wednesday, March 26, 2003 6:52 PM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: RE: [dvd-discuss]Lexmark Decision
> 
> 
> On 26 Mar 2003 at 15:41, Ole Craig wrote:
> 
> Date sent:      	Wed, 26 Mar 2003 15:41:01 -0500 (EST)
> From:           	Ole Craig <olc@cs.umass.edu>
> To:             	dvd-discuss@eon.law.harvard.edu
> Subject:        	RE: [dvd-discuss]Lexmark Decision
> Send reply to:  	dvd-discuss@eon.law.harvard.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.
> 
> And that's the problem...consider this sequence
> 
> Copyright suit filed
> Lotsa motions
> Trial
> Jury or Judge states "it's fair use" case dismissed.
> 
> What's wrong with this? Everything. The cost in money and 
> time of the case have 
> punished the defendant. Even if he get's costs..he's still 
> out time and the 
> courts don't realize that TIME can never be recovered. THat's 
> lost permanently. 
> The case cost N years...well you are N years closer to death 
> now when you 
> shouldn't have ever gone throught it in the first place. If 
> it's fair use, then 
> then if there is no question then the people bringing the 
> suit should pay. If 
> ignorance of the law is no excuse for a defendant, then WHY 
> is it an excuse for 
> someone bringing a lawsuit?
> 
> 
> 
> 
> > 
> >  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
> > [...] Oh, shed thy mercy and thy grace / On those who 
> venture into space.
> >    (R. A. Heinlein)
> 
> 
>