[free-sklyarov] Fair use.

[Matthew T. Russotto]

On Monday, December 17, 2001, at 04:18 AM, Igor Motsnyi wrote:

> 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)-ìNothing in 
> this section shall affect rights , remedies, limitations, or defenses 
> to copyright infringement, including fair use, under this title.î 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?

  According to the courts in the Corley case, no.  The copyright owner 
doesn't have the right to prevent fair use, but they don't have to 
design their technological measures to give you the practical ability to 
exercise fair use -- and section 1201 makes it illegal to bypass those 
measures for whatever reason.  The rationale for this appears in the 
Euro-DMCA -- since no technological measure can decide what is fair use 
and what is not, the law must err on the side of allowing copyright 
owners to decide what the restrictions are or the law becomes 
meaningless.