[free-sklyarov] Fair use.
igormotsnyi at hotmail.com
Mon Dec 17 01:18:13 PST 2001
Since the course of business has suddenly shifted with the great assistance
of the US Attorneys 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
copyrights 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
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
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
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
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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