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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
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)