[free-sklyarov] [declan@well.com: FC: More on AAP, librarians, Waco, Ruby Ridge, and the Sklyarov case]

[Theodore Hong]

> August 1, 2001
> TO: U.S. ACM Public Policy Committee
> FR: Allan Adler, VP for Legal and Governmental Affairs, AAP
> RE: Digital Millennium Copyright Act ("DMCA")
> This memorandum is intended to respond to the letter dated July 26, 2001
> which was sent to AAP President Pat Schroeder by Barbara Simons and Eugene
> Spafford, Co-Chairs of the U.S. Public Policy Committee of the Association
> for Computing Machinery ("ACM"), regarding ACM's opposition to the
> anticircumvention provisions of the DMCA.

As I see it, the essential flaw in Adler's argument is that it starts 
from the point of view that infringement must be made impossible no 
matter what the cost.  Thus, the fact that technological measures will 
inevitably be broken leads him to the conclusion that circumvention must 
be made a crime, not that such measures are futile and other approaches 
need to be taken.  The fact that anti-circumvention laws might be
ineffective if fair use exceptions were granted leads him to the
conclusion that fair use must give way, not that anti-circumvention
violates the public's rights.

It is true that "fair use" does not grant an affirmative right of
access to break into a movie theatre to view a movie showing there.
The analogy is flawed, however, because fair use is not the only right
at stake; more fundamentally, it is the right to do what you like with
your personal property.  While a theatre owner may legitimately
exclude others from his premises, anti-circumvention laws aim to
prevent you the movie buyer from gaining access to your own movie.

A better analogy is to imagine buying a DVD in the form of a
television inside a locked box that can only be viewed through a small
eyepiece.  Blanket anti-circumvention laws forbid you to break open
the box to view more conveniently, simply because you might then have
the ability to show the movie to others.  They pay no attention to
your actual intent, nor indeed to your right to dispose of your
personal property as you see fit.

There are a wide range of legitimate uses one might have for an
unlocked box beyond illegal infringement.  In defining a legal
standard that broadly criminalizes products for circumvention rather
than infringement, the DMCA represents a substantial departure from
the well-established Sony precedent, not merely a clarification.  It
might be considered clearer, but only in the sense that it forbids
products which clearly ought to be legal.

It must be recognized that the interests of publishers have to be
balanced against the interests of the general public, and that
solutions must be found which benefit both.  The confrontational,
supply-side approach of blocking infringement at any cost inevitably
tramples the latter in a rush to protect the former.  A far better
approach that promotes both interests is to reduce demand, by
providing convenient alternatives that make infringement simply not
worth the hassle.

theo

--
Theodore Hong         Department of Computing, Imperial College
t.hong at doc.ic.ac.uk   180 Queen's Gate, London SW7 2BZ
PGP key: http://www.doc.ic.ac.uk/~twh1/

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