[free-sklyarov] Fair use "rights"

Jay Allen sklyarov at openwire.com
Sun Aug 5 17:15:35 PDT 2001

| > Check out this bogus language kungfo:
| >
| > "Fair use is an affirmative defense.
| > As such, it is a privilege, not a right."
| And that is a LIE.

Actually, it's not.  In many forums across the internet (here, /., Kuro5hin 
and even EFF documents), I've see fair use referred to as a "right" and 
"personal non-commercial reproduction" included under the fair-use 
umbrella.  Perhaps I'm missing something or perhaps it's just semantics and 
a bit of lazy writing, OR perhaps there is a flaw in our arguments.  Let me 

[I'm sort of thinking out loud here, and trying to put together some 
thoughts which may or may not be based in reality.  I've read the 
Consitution, the Bill of Rights and as much of the applicable US Code that 
I could find, but I could find nothing to contradict what I'm about to 
write.  I would be very interested to find out whether or not the following 
is correct and, if not, where I've misstepped.]

It seems to be a common misconception that we in the U.S. have a right to 
make backups or do other things which facilitate personal use and that 
providers of materials must allow for that.  US Code, Title 17, Section 107 
(http://www4.law.cornell.edu/uscode/17/107.html) deals with the fair-use 
limitation of exclusive [author's] rights:

    The fair use of a copyrighted work, including such use by
    reproduction in copies or phonorecords or by any other means
    specified by that section, for purposes such as criticism,
    comment, news reporting, teaching (including multiple copies
    for classroom use), scholarship, or research, is not an
    infringement of copyright.

First, you'll notice that it says nothing about personal backups, which are 
actually detailed in Section 1008 (which was introduced with the Audio Home 
Recording act of 1992, see http://www4.law.cornell.edu/uscode/17/1008.html):

    * Prohibition on certain infringement actions
    No action may be brought under this title alleging infringement
    of copyright based on the manufacture, importation, or distribution
    of a digital audio recording device, a digital audio recording
    medium, an analog recording device, or an analog recording medium,
    or based on the noncommercial use by a consumer of such a device
    or medium for making digital musical recordings or analog musical

The second thing you may notice about this is that it does not confer upon 
the consumer any right, but instead a protection from any action 
(prosecution) under this statute.  Producers of copyrighted works are never 
under any obligation to allow you to sample, backup, copy, etc their work 
(as they are, by the way, in Russia), however, the law allows you to do so 
without fear of prosecution.  It's a fine point, I know, but it seems that 
there are no such things as fair use _rights_ or personal use 
_rights_.  Uses such as these are simply protected under a safe harbor 

Now that's just about copying a work. If the work is encrypted for purposes 
of copyright protection, then the DMCA kicks in.  The DMCA, of course, 
makes it illegal to circumvent encryption algorithms or other copyright 
protection measures, further limiting personal use and fair use...  All in 
all it's an erosion of consumer freedom with goods which they have 
purchased. Quite legal (as far as the DMCA is concerned) but it has a 
deleterious effect on the consumer freedom.

Why is this important?  Well, it's probably not, BUT it certainly reflects 
on the communities knowledge of the law.  When fighting with lawmakers and 
lawyers, we need to avoid sounding like a bunch of reactionaries who only 
have half of the information.

Your thoughts on the above would be greatly appreciated...


On another note, section 8(d) of the criminal complaint (under the Basis of 
Charges, see 
http://www.eff.org/IP/DMCA/US_v_Sklyarov/20010707_complaint.html) says that 
Dmitry's name was found on the opening screen as the copyright holder.  I 
have information from "a friend" who has the program that this is 
absolutely untrue.  See 
http://www.kuro5hin.org/comments/2001/7/28/19211/2584/101#101 for more details.

Lastly, please make sure to write your congresscritter to educate them on 
issues concerning the DMCA 
(http://www.congress.org/congressorg/dbq/officials/).  I was shocked to 
find that none of my congressional representatives (Boxer, Feinstein, 
Pelosi) even touched on technology issues on their websites or in almost 
any of their floor speeches.  Seems like if you're representing San 
Francisco, that you might at least give a little lip service to it, no?  At 
least Boucher (D-Va) seems to be an exception to the rule that 
congresspeople must have their heads stuck up their collective ass on tech 

Didya know that the DMCA was passed unanimously by the Senate and passed by 
voice vote in the House (which means no record exists of individual voting 
records).  There's some serious edumacation needing to be doled out in 

Jay Allen

P.S.  Isn't it wonderful how the DMCA excepts Government agencies from 
encryption algorithm circumvention for the purposes of law 
enforcement.  (Title 17, section 1201(e), 

P.P.S. If you haven't Bryan Pfaffenberger's Linux Journal article entitled 
"Linux and DeCSS: What the MPAA is Really After", do 
so:  http://www2.linuxjournal.com/articles/currents/016.html

More information about the Free-sklyarov mailing list