Re: [dvd-discuss] Felten Opp to DoJ Motion to Dismiss

[Michael.A.Rolenz(at)aero.org]

I was pondering John's post this weekend <actually I was pondering the 
fact that I have some LPs I really wish I had on CD but they are not 
available...and then I read John's posting> I think John has hit upon a 
key point in copyright which the courts have missed. Namely, the copyright 
is upon the fixation of the idea but NOT the media in which it is fixed. 
When I purchase  a copy in any media, I gain the right to possess a copy 
IN ANY MEDIA.  That the types of media has increased ten fold in the 20th 
century and the subsequent resale of works in new media has caused 
confusion of the media with the copyright. To mangle Marshall Macluen-The 
media is not the message.

"Any legitimate access granted to a copy of a work, constitutes a 'first
sale' of a copy of that work equivalent to the purchase of any
fixed-medium copy.  While any and all subsequent use is subject to the
ongoing exclusive rights of the copyright holder, it is also free from
any restriction on uses which do not infringe those exclusives --
effectively "fair use" as it has been defined by precedent and law."






"John Zulauf" <johnzu@ia.nsc.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
10/26/01 09:43 AM
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        Subject:        Re: [dvd-discuss] Felten Opp to DoJ Motion to Dismiss




Bryan Taylor wrote:

> Bartnicki v. Vopper, No. 991687 (US Supreme Court, May 21, 2001)
> http://laws.lp.findlaw.com/3rd/992341p.html
> 
> Opinion by Stevens for a 6-3 Court.

opposes that concept that:

> speech by a law-abiding possessor of information can be
> suppressed in order to deter conduct by a non-law-abiding third party."

This concept is the whole point of an anti-circumvention law.  The
MPA/RIAA states that in needs to "keep honest people honest."  This
assumes that information provided in the form of circumvention software
will induce a third party to ignore an entirely different law.
Specifically it asserts that these third parties will act in such a way
as to infringe the copyright of work which has had its TPM circumvented.

The logic of the court therefore is that anticircumvention laws cannot
be a consttitutional, valid means to the end of reducing infringing
copies.  If the copyright holders are concerned about "internet piracy"
the must seek stiffer penalties from the congress for that very act, and
not seek suppression of truthful information to achieve their specific
anti-infringement goal.

Where this gets interesting is how far this logic extends to
"pre-first-sale" access.  Assuming the court doesn't back down from this
statement... it would seem that circumvention related information
(including software, thanks to Mr. Junger) would still be exempt even if
it allowed for "pre-first-sale" circumvention.  This would be a profound
(and refreshing) slap in the face of "trusted client" business models. 
As clients can never truly be trusted (without an SSSCA police state),
this will actually, finally move the copyright industry to the only
business model that doesn't defy the laws of information science.

"Any legitimate access granted to a copy of a work, constitutes a 'first
sale' of a copy of that work equivalent to the purchase of any
fixed-medium copy.  While any and all subsequent use is subject to the
ongoing exclusive rights of the copyright holder, it is also free from
any restriction on uses which do not infringe those exclusives --
effectively "fair use" as it has been defined by precedent and law."

While in practice this would mean that rental works could be archived in
a home library -- it would probably change the pricing scheme a bit (to
a bit steeper) -- and require that Blockbuster et. al. kick-back some
"per-rental" royalty.  Fine... this makes more sense than requiring that
a customer can't figure out how to use a "Macrovision" video stabilizer
on his or her home DVD burner (watch your local Best Buy/Circuit this
time next year).

In the final analysis.  Economics always requires business models to
conform to relevant physical or enconomic laws.  A business model (like
many we have today) based on artificially imposed constraints always
leads to a black market, externalities, misallocation of resources (too
much margin to the publishers vs. the artists), and other market
inefficiencies.