[dvd-discuss] TurboTax, The DMCA, The Copyright Power, and The Commerce Power

[John Schulien <schulien(at)speakeasy.net>]

This turned out very long.  I hope that you will
all bear with me on this ...

"John Zulauf" <johnzu(at)ia.nsc.com> writes:

 > You are making good and valuable use of the
 > software, a right not granted without the
 > authorization of the copyright holder ...
 > You are extracting the a right to use without
 > payment to the rights holder ...
 > This ... right to license is the "good or
 > service" of the software company, and
 > circumventing (prior to first sale) infringes
 > this right. ... clearly one would be defrauding
 > the company of remuneration for  the "right
 > to use" a full copy.

I picked John's comments out because he most
clearly articulates this position, but others
are using similar arguments.

Let's be very careful when talking about "rights"
to make sure that we don't imply or assume rights
that don't actually exist.

The rights of a copyright holder are not natural
or preexisting rights that are officially
recognized by the Government as the rights
enumerated in the Bill of Rights are considered
to be. The "exclusive rights" of a copyright
holder are created by Congress under the authority
of the copyright clause, enumerated in 17 USC 106,
and modified and limited by other chapters of the
law.

An "exclusive right" is the right of a copyright
holder to exclude others from doing something.
There is no right to exclude others from
"mak[ing] good and valuable use of a work", or
a "right to extract payment for use", or a "right
to license use of the work".  Copyright law
creates no exclusive "right to use" a work either.
None of the exclusive rights that you claim would be
infringed upon actually exist.  If those rights
actually did exist, then libraries and used
bookstores would not exist.  They would clearly
be violations of the exclusive rights that you
are claiming exist for software products.

Arguably, copyright was designed and intended to
eliminate and prevent the incredibly evil and
destructive results of the sort of "rights" that
you describe and assume -- where a copyright
holder could claim the "right" to prohibit
individuals or groups from reading or utilizing
works.  There are good reasons not to recognize
such rights.

For example, the Gershwin estate prohibits
any production of the play "Porgy and Bess" with
white actors.  This is considered to be a proper
and legal exercise of the copyright (although not
necessarily an ethical use.)  If such a
"right to use" or "right to control access"
existed, then what would stop, for instance, a
racist encyclopedia or textbook publisher from
prohibiting the use or reading of his textbooks or
encyclopedia by black students, or insisting,
backed by the full force of Federal law, that
his textbooks and encyclopedias only be placed
in "white" libraries and schools to keep them
away from persons who were not "authorized to
use" his works, the way that the Gershwin estate
prohibits white actors from performing Porgy and
Bess in public?

17 USC 117 answers the question of whether it is
an infringement of copyright to install and use
copies of software that you own:

   "it is not an infringement for the owner of
    a copy of a computer program to make or
    authorize the making of another copy
    or adaptation of that computer program
    provided ... that such a new copy or
    adaptation is created as an essential step
    in the utilization of the computer program
    in conjunction with a machine and that it
    is used in no other manner ..."

To me, the answer is that if I can take the CD
that I own (because it was given to me as a gift),
sit down at my computer, and using nothing but
my offline computer and the CD, successfully
install, configure, and use TurboTax, then I
have not infringed on the exclusive rights of
the owner of the TurboTax copyright.

The fact that I have not infringed copyright
doesn't necessarily mean that I haven't broken
any laws. It has been pointed out that this
software contains a TPM, which brings the DMCA
into the picture.

17 USC 1201(a) contains a prohibition against
"circumvent[ing] a technological measure that
effectively controls access to a work protected
under this title.  Arguably, one is prohibited
from taking the action of circumventing the TPM.

However, that does not create a new exclusive
right to exclude others from accessing and using
legally made and distributed copies of
copyrighted works.

Arguably, the DMCA never modified copyright in
any way:

| 17 USC 1201(c) 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.

Translation:  Section 12 (the DMCA) does not
               modify, add to, or subtract from
	      copyright.

o  It does not affect "rights under this title."
    If it does not /affect/ exclusive rights, then
    it certainly cannot /create/ new "exclusive rights"
    of copyright holders.  /Creating/ new rights would
    certainly /affect/ exclusive rights under [Title 17].

o  It does not affect copyright law remedies

o  It does not affect limitations to copyright
    law.

o  It does not affect defenses to copyright
    infringement, including fair use.

It is as if the authors of the DMCA were forced
in the end to acknowledge that the authority for
the DMCA does not come from the copyright
clause, and erected a legal wall between the two.
Nowhere does the law claim that the actions
prohibited by Chapter 12 (the DMCA) are "an
infringement of copyright."

I believe that the idea that restricting
who has the right to access and use copyrighted
works is absolutely contrary to the purpose and
spirit of "promoting progress" that it cannot
possibly be justified by the copyright clause.

The term for this theory is "paracopyright".
Under paracopyright theory, the DMCA is not
a "copyright law" in the sense that it is an
exercise of the Constitutional grant of
copyright power. Instead, it is a law affecting
the use of copyright and copyrighted works
that must derive it's authority from elsewhere
in the Constitution, possibly the commerce clause.

Part of the confusion arises because the DMCA
was placed in Title 17.  Title 17 was originally
intended to contain copyright law, but just
because a law is added to Title 17, it does
not necessarily follow that that law is derived
from the Copyright power.  I believe that the
naming of the DMCA, and the placement of the DMCA
in Title 17 was a deliberate attempt to confuse
people about the true nature of the DMCA, and
to confuse people by implication into believing
that certain rights exist that do not.

I also believe that the reason why it is so hard
to fight the DMCA in the courts is that this point
has been largely missed.  Laws under the copyright
power may be passed at the wide descretion of
Congress, but laws under the Commerce power are
subject to far greater 1st Amendment scrutiny.

I'd like to see a serious attack on the DMCA
based on the theory that a law prohibiting access
to and use of copyrighted works without permission
stands in such absolute and naked opposition to
the Constitutional requirement of "promoting
progress" that the DMCA cannot be Constitutionally
justified under the authority of the Copyright
clause.  Force the Government to pick a different
Constitutional authority, probably the commerce
clause, and attack the DMCA from there.  I do not
believe that the DMCA would survive First Amendment
analysis as an exercise of the Commerce power.

As far as the issue of ethics:

When you engage in an action prohibited by
17 USC 106 (and not authorized by an exception),
you are infringing on an exclusive right of
a copyright holder, as granted to that holder
by Congress under the authority of the Copyright
clause.  The harmed party is the copyright
holder, and individual, and any analysis of
ethics must consider the (synthetic) rights of
the individual copyright holder.

When you engage in an action prohibited by
17 USC 1201 or 1202, you are violating a federal
law, but not infringing on an exclusive right.
Because you are not infringing on the natural or
synthetic rights of an individual, the
corresponding analysis of ethics need not take
the interests and desires of the copyright
holder into account.  The offense is soley
against the interests of government, or possibly
"society at large", not against the rights of
an individual copyright holder.

The ethics of what you do with your encrypted
copy of TurboTax, in the privacy of your home,
on the privacy of your computer, are roughly
comparable to the ethics of what you do with
your consenting partner in the privacy of your
bedroom.  There are laws that prohibit certain
activities, and some people consider disobeying
those laws to be unethical as well as illegal.

Others disagree.

- John