[free-sklyarov] Fair use.

[Igor Motsnyi]

Dear All,

Since the course of business has suddenly shifted with the great assistance 
of the US Attorney’s office it seems an appropriate time to analyze the 
charges against Elcomsoft (finally the prosecution realized that it was not 
such a good idea to hunt Dmitry).
In that regard the issue of fair use  might be of a great importance.

Fair use has always been a pride of U.S. copyright doctrine. It played a 
crucial role as a defense to many copyright infringement claims.
BETAMAX is one of the most famous examples of fair use successful 
application and the term “time shifting” has become an indispensable part of 
copyright’s vernacular. Sec. 107 of the US Copyright Act was the last resort 
for many persons trapped inside multiple copyright violation allegations.

The outcome of the present case will most probably be decisive for the 
future of fair use defense doctrine in the US. Apparently, if the court 
holds Elcomsoft liable for Anti-circumvention violation fair use might 
become just a paper provision that can not be effectively enforced in the 
digital era. It will be just a part of American copyright history 
illustrating the past but not capable of being practically feasible in the 
future.

As most of us know fair use is mentioned in the DMCA only once and only in 
the context of copyright violation-Sec. 1201(c ) (1)-“Nothing in this 
section shall affect rights , remedies, limitations, or defenses to 
copyright infringement, including fair use, under this title.” It means that 
if you have been charged with copyright violation you are still entitled to 
recourse to fair use. Undoubtedly, it sounds good. However after a short 
while some of us will probably realize that the same section does not say a 
word as to the possibility to invoke fair use in the case of 
Anti-circumvention claims. Can you rely on fair use in Anti-circumvention 
procedure?

Reading the Summary of the DMCA prepared by U.S. Copyright Office in 1999 I 
have discovered a very interesting point: “…Since copying of a work may be a 
fair use under appropriate circumstances, section 1201 does not prohibit the 
act of circumventing a technological measure that prevents copying.”!?!? If 
a circumvention of a technological measure to exercise fair use is perfectly 
legal what about product that allows such circumvention.

Obviously, the AEBPR modified format of the eBooks allowing the legitimate 
users to copy, have read the text audibly, etc. It made possible fair use of 
eBooks for the same fair use was not possible in the original format due to 
some restrictions of the Adobe eBook. If, according to U.S. copyright office 
it is legal to circumvent for the sake of fair use why it should be illegal 
to facilitate this “fair use circumvention”?

It is generally known that technological measures of Sec. 1201 are divided 
into two groups: measures preventing unauthorized access to a copyrighted 
work and measures preventing unauthorized copying of a copyrighted work. 
Again U.S. Copyright office: “The distinction was employed to assure that 
the public will have the continued ability to make fair use of copyrighted 
works… Making or selling devices that are used to circumvent either category 
of technological measure is prohibited in certain circumstances.” It is a 
bit unclear how can you circumvent to apply fair use if the devices that 
might be helpful for your “legitimate circumvention” are outlawed in any 
case. Even if you are a legitimate owner.
If one already owns a work legally he (she) should be able to use all the 
rights he is entitled to. If there are any devices that are capable of being 
helpful to legitimate owners these gadgets should be lawful otherwise there 
will not be any sense in having fair use in the US anymore. Therefore, the 
statements of U.S. Copyright Office appears not only contradictory but also 
preposterous.
“Within the U.S. legal system, the courts traditionally have been the 
guardians of both fair use and First Amendment principles”-the phrase said 
by Julie Cohen three years ago.
We still do not know whether this statement is applicable now. Recent 
developments (Felten and 2600 case) have demonstrated that the courts are 
not always reliable and predictable in their jurisprudence.

We can not be sure whether fair use is still a living and easily adaptable 
to various circumstances instrument or just a museum piece belonging 
exclusively to the memory of good times.


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