[free-sklyarov] Fair use.

[Christopher R. Maden]

At 01:18 17-12-2001, Igor Motsnyi wrote:
>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.

That's precisely the problem with the DMCA (or at least, the one of many 
problems that directly concerns this case).  *Using* circumvention 
technology may be legal under the DMCA in a particular instance, but 
trafficking in the technology is (almost?) always illegal.

This is one very good reason for the US Attorney to drop the case against 
Dmitry; I think that at best, they could get him for conspiracy to traffic 
or aiding and abetting.  Elcom definitely trafficked in the technology; the 
only real defenses that I can see[*] are that this clause of the DMCA 
violates fair use, which is a facet of the First Amendment, or that the 
trafficking occurred in another country outside of US jurisdiction and that 
it was only the purchaser (Adobe) who brought the transaction into the 
US.  That latter argument is much weaker, since the commerce server 
brokering the financial transaction was in the United States.

 From my own selfish point of view, this is good, because it makes this a 
much more likely test case than Dmitry's prosecution.  However, given the 
results of the Felten and DeCSS cases, I'm extremely nervous about the outcome.

~crism

[*] Dammit, Jim, I'm a politician,[**] not a lawyer!
[**] Gak.  I never thought I would stoop so low...
-- 
Libertarian candidate, California State Assembly, District 13
Free Sklyarov: <URL: http://www.freesklyarov.org/ >
Freelance text nerd: <URL: http://crism.maden.org/ >
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