[free-sklyarov] Fair Use is a Balance?

[Seth Johnson]

(Some fine analysis from dvd-discuss at eon.law.harvard.edu list)

-------- Original Message --------
Date: Mon, 24 Sep 2001 23:31:03 -0400 (EDT)
From: Scott A Crosby <crosby at qwes.math.cmu.edu>

On Sun, 23 Sep 2001, Bryan Taylor wrote:


> Because fair use is the balancing of copyright vs first amendment
> rights, it isn't simply a policy decision. Broadcasting's public
>

Actually, reading this again this time, this sentance twigged me.

Is 'Fair use' a 'balance' at all?

Isn't Fair use is the doctrine that keeps the copyright act
constitutional, without that doctrine, the copyright act would violate
the first amendment and be unconstitutional?

That would mean that any erosion of fair use must automatically infringe
the first amendment... IMHO, we need to be cautious about the debate
luring us toward quicksand of their choosing.

Once the argument goes from 'Digital control will let us obtain the most
money and extract the greatest control over the users of the works we
own' to 'Digital rights management will allow us to manage, digitally,
the same rights we've always enjoyed', we've lost the battle.  Noone
will accept with the first, but I would have once accepted the second.

Scott