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Re: [dvd-discuss]Lexmark Decision

On 26 Mar 2003 at 17:48, Peter D. Junger wrote:

To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss]Lexmark Decision 
Date sent:      	Wed, 26 Mar 2003 17:48:48 -0500
From:           	"Peter D. Junger" <junger@samsara.law.cwru.edu>
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> Ole Craig writes:
> : 	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.
> : 
> : 	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?
> The problem is that the term ``right'' is remarkably ambiguous.  It
> is true that the courts developed the doctrine---it is not statutory
> in its origin---that ``fair use'' was a defense to an infringement
> claim.  And this means that one has a ``privilege'' to make fair
> use of copyrighted works. A privilege that was later enacted in
> in the Copyright Act.  It also has been strongly suggested, at least,
> by the Supreme Court that the Copyright Act does not abridge the
> privilege of Free Speech included in the First Amendment because
> it allows fair use as a defense.
> This strongly suggests that the DMCA is susceptible to constitutional
> challenge unless the courts read in a fair use defense.
> And if you read what the Second Circuit Court of Appeals says
> the law is in the Corley case, it would seem that the application
> of the DMCA will in many cases be unconstitutional, although
> that Court then misapplied the law that it had just declared to 
> the particular facts in front of it. 
> To return to the original question, I would suggest that the ``right''
> of free speech is nothing more than a defense to the application of
> laws forbidding one from speaking freely.  So, in that sense, if
> ``fair use'' is not a right, then neither is free speech.

While that is one way of looking at it...another way is that the laws 
forbidding speech are unconstitutional until proven that there is a compelling 
state interest otherwise. The burden then shifts from the defendant to the 
legislative body to demonstrate that fact. Speaking freely about the arcana of 
making nuclear weapons is a compelling state interest...but...what the data 
formats on a DVD? 

> I would add that to some lawyers the issue simply is whether one
> has to plead fair use as an ``affirmative defense'' in an infringement
> suit.  That is, however, just a procedural matter and is certainly not
> what non-lawyers (and most non-trial-lawyers) are talking about when
> they discuss whether fair use is a right.
> --
> Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
>  EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
>         NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists