Copyrights Rule

Lawrence Lessig offers a diatribe on the strange distinction the court system draws between different types of speech infringement. For anyone who's ever wondered why the good guys won the CDA case but lost the DeCSS case...

If Copyright doesn't apply...

[PhilHibbs]

If the creator of a work imposes technological restrictions that prevent me from exercising my rights under copyright law, then that is a clear statement that, in their opinion, copyright law does not apply to the work. I therefore feel no moral qualms about copying and distributing DVD movies.

Note that in the UK, there is no DMCA, so copyright law has not yet been amended here to make my stance explicitly illegal.

Thoughts

[troyboy]

Part of the problem that Lessig addresses is that Congress has the constitutional power to grant copyrights. So, traditionally, courts have had a good excuse to just say that the First Amendment is not an issue in copyright cases. Limits to copyright such as fair use (reverse engineering, sampling, parody, etc) have addressed many of the free speech concerns.

The reason that courts may be able to get to the right result in the DeCSS case is because, first of all, it is not clear that Congress was acting in its copyright power. Therefore, the traditional First Amendment analysis may apply. Second, because the DMCA effectively eliminates fair use, it is difficult for a court to say that the First Amendment is not applicable.

So, the DeCSS case will really be a good indicator of which way things will go. If the DMCA anti-circumvention provisions survive, then copyright could continue to be a special area immune from the First Amendment. This would be a bad thing. But, if the Second Circuit and/or the Supreme Court strike it down, it could open up a whole world of possibilities for free speech on the Internet.

DMCA=Unconstitutitutional...

[OmegaDan]

IANAL, but the DMCA assigns liability for circumventing access protection devices ... But read the subtext: "access protection devices" is some pretty words for "damn near anything the author can make a machine to enforce." Lets say I wanted to distribute DVDs that were only playable on saturdays ... I make dvd players that listen for the time broadcasts sent out by atomic clock stations, and refuse to play discs marked for saturday useage on any other day. ANY limitation which can be accomplished technologically is now backed by the full force of law. Now, the time limitation is an excercise in absurdity, but, region encoding? Thats absurd to, but the DMCA backs it. The DMCA is unconstitutional because its assigning the power to make laws to corporations and individuals by enforcing their notions of fair use. I believe I am the first person to make this arguments.

Whats worse, "circumvention" could be as simple as playing a DVD in a player you bought in another region. In this sense, the law is too broad, making commonsense actions like playing a DVD in a DVD player illegal (I believe someone has already made this point).

Omegadan: Dispensing original thought since 1978.