Re: [dvd-discuss] Re: nimmer

[Eric Seppanen <eds(at)reric.net>]

On Fri, Nov 02, 2001 at 07:40:41PM -0800, Bryan Taylor wrote:
> Nimmer is considered one of the leading scholars on copyright, if not THE
> leading scholar. I don't think the Nimmer supports the DMCA anymore, since he
> wrote an article called "A Riff on Fair Use". His position below seems very
> sensible, since it would be based on simple copyright infringement, which would
> admit a fair use defense. 

Well, I can't claim to have read "A Riff on Fair Use" because I don't
think it's on the net anywhere.  But, regardless of his status, I don't
understand how you could call the position below "sensible".  I found
liked most of the article a great deal, but the part quoted below seems
to have a few big problems.

The article argues that in most cases existing copyright law is fair and
offers reasonable protections to copyright owners (I agree with that).
But the paragraph in question is holding the Divx format up as a model
that could be fairly protected under current law plus "pending
federal legislation", presumably the DMCA. The arguments he gives,
paraphrased, seem to be:

1. Modifying DIVX software to bypass designed-in limitations would be
   illegal because:
  A. You would need to copy the software to do so, and that would be
     copyright infringement, or
  B. You would need to create an "unauthorized derivative work" that
     is assumed to be illegal in an unspecified way.
2. The "impropriety" of breaking "anti-copying technology" will be
   stopped cold by the DMCA.

These arguments are given bolster claims that contract law is an
unnecessary addition to the balance of rights.

I see several problems here:
- reverse-engineered DIVX software might be possible, evading 1.A and
  1.B.
- modifying your own copy of software might be legal, evading 1.B.
- it's not explained why the "unauthorized derivative work" in 1.B is
  illegal.  Is he assuming that a hacker distributes actual hacked
  binaries?  Not very ingenious... any good hacker should be able to
  figure out better ways that aren't (at least obviously) copyright
  infringement.
- His article demonstrates that rights-eroding shrink-wrap contracts
  aren't necessary.  One of his arguments depends on the rights-eroding
  DMCA-- that's not exactly forward progress.  If you remove the DMCA 
  from the equation the argument falls apart, because the Divx business 
  model won't work if there's a way for free viewers to exist.

I would actually like to see the the article succeed in its goal; 
shrink-wrap contracts bug me as much as anyone.  But the logic in his
Divx example just doesn't cut it in my opinion.  I fail to see a way
that Divx's model could gain fair copyright protection without the
problems we see with the DMCA and with shrink-wrap contracts.

> --- Eric Seppanen <eds@reric.net> wrote:
> > It's kind of hard to take this as a sensible reference when it says
> > stuff like this:
> > 
> > "Although one can appreciate the desire of the studio to seek any and
> > all legal protections it can, the copyright laws of today (and certainly
> > those of tomorrow) should prove more than adequate to protect the
> > studio'sinterest, even absent the proposed contract. Modifying the Divx
> > software to defeat the lockout (assuming, for the sake of argument, it
> > were technically possible) likely would involve either unauthorized
> > reproduction of at least a portion of the copyrighted work, or the
> > creation of an unauthorized derivative work.  Either way, copyright
> > infringement liability would result. Moreover, any doubt about the
> > impropriety of defeating anti-copying technology will likely be laid to
> > rest by pending federal legislation. Thus, even on the so-called 
> > bleeding edge of technology, we find it difficult to see a need for
> > state law protection of copyright rights in connection with the
> > mass-market distribution of copyrighted works."
> > 
> > If, as we all hope, the DMCA has fatal flaws, then it leaves a gaping
> > hole in this argument.