Frank and Ray,
Greetings from multi-month absence.
From every logical, practical, pragmatic and analytical viewpoint of my own personal experience and outlook (prejudiced and limited as it may be) I am in agreement with Ray's points.
I suspect that the answer both to your question and to the extent of the fair use premise raised by the author of the NYT article, is actually a very complex technological and philosophical question of deciding at what point in the life of the work in question does that work become defined as a completed and available work, and just as importantly in what physical and informational state is the content at the point at which its rights holders deliver it from a state of personal private possession to a state of public, commercial and intellectual availability. Clearly those who decide this issue must be well informed on the legal, developmental and commercial aspects of the decision. But just as clearly they must be capable of both judging and understanding the technological and information transfer aspects of the case under consideration.
One would hope that those who will make the decision are as well prepared, or at least as well advised, technologically and scientifically, as they have prepared themselves to be legally, and that they are capable of truly defining the line of demarcation in both physical and informational condition and time, between the completion of the creation/production process and the delivery into public/commercial availability.
Kaplan's NYT article apparently takes the position that content protection is something new that is an assault upon constitutional rights. His argument, however, substantially neglects the question of the physical and technological condition of the work at the point at which it was delivered into the public/commercial channel and the point at which the rights owner's protection yields to "fair use". He seems to feel that now the basis of fair use ought to be changed so that the very existence of the intellectual property is the point at which its owner gives up control and subjects his property to fair use. He points to the prior applications of the fair use doctrine as the basis of his position:
"There's a long-accepted notion in the publishing world that between
the right of an author to control the uses of his book and the right of
a reader to engage in free speech is the safety valve known as "fair use."
The fair use doctrine under copyright law permits uncompensated use of
copyrighted works in some circumstances, such as in teaching, research
and news gathering. Thanks to fair use, a reporter can quote portions of
a newsworthy letter in an article and a scholar can use parts of a poem
in a dissertation."
Clearly the application of the fair use doctrine responds to and is defined by the intent of the user. It also limits the future applications of the intellectual property that the fair user accesses under the doctrine. But I would submit that it does not give that limited-use user the right to violate the boundaries (both physical and informational) of the delivered content as defined by the author's intent and the physics of the media in which it was delivered to the public domain.
- A scholar or newswriter has the right to quote or copy a book, but clearly is not
entitled by virtue of the fair use doctrine to assert that right by breaking into a
library to obtain that access, or by stealing a book from a bookstore.
- The same scholar or newswriter who is not proficient in German does not have
the right to demand his fair use access by forcing the author of a work written
in German to translate it into English.
- The same scholar or newswriter has no right derived from the fair use doctrine
to insist that the original document writer make his pre-publication manuscripts,
notes and records available to him.
- The illiterate middle ages common man had right to listen to and repeat the
story told by a minstrel in his town square, but that right did not extend to
the right to physically capture the minstrel, lock him in a room and make
repeat the story for that man's friends.
- Application of the fair use doctrine provides no right to a scholar to demand a
free copy of a VHS tape of a movie or to give him a free pass to steal a copy
wherever he might find it without paying the legal price for such a criminal action.
I would submit that "fair use" has always applied only to use after legal access to the property, and only in the same physical state or states in which the property was legally delivered or otherwise then legally exists in public accessibility.
In prior methods of delivering content to the public, the physical as well as the technological point at which the line of demarcation of transfer took place were clearly coterminous and easily defined. Hopefully the courts are equipped to see, and continue the precedent, that the mere fact that the content is digital does not take the right from the owner to determine the physical and informational protection of the content at the point at which that content is delivered into commerce and at which point the rights owner's protections become operative.
The decision of a content rights owner to deliver its intellectual property to the public and to commerce in the form of encrypted informational bits ought to define the point at which that owner's rights become effective. IMO that the "fair use" accessor has the very same access, but no more or less, to a legal copy of that content as if it were a limited publication book that the same accessor had to hunt high and low for in order to find a legally available copy to "fairly use" in the scholarly pursuit of his rights.
Steve |
