Re: Electronic Publication

In article <9j2lP3CXw-B@xxxxxxxxxxxxxxxxx>,
kaih=9j2lP3CXw-B@xxxxxxxxxxxxxxxxx (Kai Henningsen) wrote:

> > Fair use doesn't say you have the right to use intellectual property in
> > a certain way, only that you can't be prohibited from doing so by
> > copyright law.
>
> Same thing. No copyright law, no (this kind of) intellectual property.
>
> > Fair use, for instance, would allow you to quote bits of my novel in the
> > context of a review. But in order to do so, for bit I haven't posted
> > anywhere,
>
> Just a second ... that's an entirely different thing from what we're
> talking about.

On the contrary. We were talking about people preventing you from using
things by methods other than copyright law--and I am giving an example
of such.

> >you would have to break into my house, since that's where the
> > text is located (or my editor's house, or ...). Is it a violation of
> > your fair use rights that if you come to my door and demand to read the
> > manuscript I refuse? Is it a violation of your fair use rights that you
> > can't quote from documents describing a firm's trade secrets? Classified
> > government documents?
>
> Have you actually *bought* any of those?
>
> Are they published, in the usual sense?
>
> If not, what are they doing in this discussion?

I don't see the relevance of either of those questions. If you buy a CD
that is designed not to do certain things, or buy it with a contractual
agreement not to do those things, you haven't bought the right to do
those things. Publishing may make it hard for me to control how other
people use what I have published, but it doesn't give them a right to
have me not keep them from using it in some ways, if I can figure out a
way of doing so. I could, for instance, publish an encrypted document
and refuse to make the key freely available--is that a violation of fair
use too?

> > One of the differences between patent law and copyright, as it happens,
> > is that one requirement of getting a patent is that you make public the
> > idea you are patenting. There is no such requirement for copyright. I

> However, all the cases we are talking about are cases where the stuff
> *has* been made public.

Not as public as some people want, if it is effectively technologically
protected.

> > can write a book and show it to nobody, I can write a book and show it
> > to only a selected few, I can write a book and show it only to people
> > who promise not to quote from it. In all three cases it is protected by
> > copyright. Do you think I shouldn't be permitted to do those things? If
> > not, what's the difference between my restricting your ability to do
> > things with my IP in those ways and doing it via some form of
> > technological protection?

> Seems trivially obvious to me. Making out as if it weren't looks rather
> dishonest.

Or in other words, you don't have an answer to the question and so
prefer name calling?

If I show a book only to a few people, others can't see it--despite
their "fair use" rights. If I distribute it to a few people and they
agree not to show it to other people--a common arrangement under trade
secret law, as it happens--then I have restricted the ability of other
people to see it. What is the difference between my limiting use by only
letting people read it in my house and my limiting it by selling a copy
that can't be copied--supposing I could successfully do so?

> > > Moreover, DRM _encourages_ such prohibitions, as with DRM is
> > > much more difficult to allow them than to prohibit them -- and it also
> > > puts the DRM-user in a position of unilaterally deciding what the public
> > > is allowed to do, which is not a good thing.
> >
> > Of unilaterally deciding what people are allowed to do with the
> > intellectual property those people have decided to buy from the DRM user
> > on those terms.
>
> Yup.
>
> >You might as accurately say that when you refuse to buy
> > a work with DRM you are unilterally deciding on what terms the seller
> > can sell--to you. As in any voluntary transaction, both parties must
> > agree for the transaction to occur, so either can unilaterally impose
> > any terms he likes--conditional on the other party accepting them.
>
> However, pretty much for every such transaction in the western world, we
> *also* have laws that govern what you can and cannot ask for in such
> contracts - and when you ask for what you aren't allowed to, that
> particular condition is void (and *not* the transaction).

So you agree that the contract is just as unilateral from your side as
the seller's side, except that you have the advantage that you can
occasionally get courts to let you out of contracts you have signed.

> You may disagree with this principle, but that is how our culture works,
> and I for one certainly don't want it to work differently.

I disagree with most restrictions on freedom of contract, as it happens.

I don't think you want to make the argument "this is the way the law now
is, so it's right," unless you are willing to concede the rightness of
all the laws you disagree with.

> Anyway, a big part of such restrictions on contracts is that if you want
> to impose rules that are different from what one would ordinarily expect,
> you have to make me aware of that; pretty much every current EULA
> connected with a DRM falls afoul of that one.

I wouldn't call that a restriction on contract so much as one of the
underlying principles of contract law.

Are you willing to agree that sellers can put on any sort of DRM they
like, provided they clearly notify the buyer that there is DRM and he is
on notice to check the details if he cares?

> In any case, there's the main problem that - well, not really all, just
> the vast majority of what is currently under debate for DRM solutions is
> significantly more than just extra rules about what I can do with the
> product I bought, as it is a separate product that goes along with the one
> I bought, and that tries to actually enforce those rules, instead of
> relying on the contract to keep me in line. That is the really offensive
> part. Not only do they forbid me to lend my book to my friend, they
> actually go and chain it to a part of my house.
>
> And you're surprised that people are outraged? *I* am surprised that some
> peiple *aren't*.

Why? The only grounds I can see for outrage is that in some cases the
seller is doing things without telling you. That aside, if you are
willing to buy a book that comes chained to your house, knowing it is so
chained, why should you be outraged? You always have the option of not
buying the book. Do you think other people have an obligation to sell
you the things you want, on terms you like? If so, do you have a similar
obligation to them?

> > > Do you not consider this sufficient grounds for moral outrage,
> > > particularly in the face of DRM users who seem to be of the opinion that
> > > they have a moral right to place those restrictions despite the fact
> > > that by so doing they are trampling on my legally-granted rights?
> >
> > As I just said above, they are not trampling on your legally-granted
> > rights.
>
> You tried to intimate that by giving an analogy that doesn't even remotely
> fit. Which you promptly try again:

I pointed out that the right of fair use is a restriction on what can be
done via copyright law. I don't think either you or Hal has denied that
so far. So if someone keeps you from using stuff in ways other than by
suing you for copyright infrigement when you do, he hasn't trampled on
your legally granted rights, or at least on those legally granted
rights. It's simply confused thinking to claim that technological
protection violates your right of fair use.

Is there some other legally granted right that you think they are
trampling on?

And, as a side issue, are you really opposed to trampling on "legally
granted rights" qua se? Helping a slave escape from the South before the
Civil War was trampling on the legally granted rights of the owner,
after all. If you are going to be indignant, shouldn't it be about acts
being immoral, not illegal?

> >If I refuse to show you my manuscript--unlikely as that may
> > be--am I trampling on your legally granted right to quote from it for
> > purposes of review or to parody it, both of which are fair use? I'm
> > making it impossible for you to do those things, but not because they
> > are prohibited by copyright law.

> Really, David, as I can't believe you're too stupid to know what you're
> doing, this is deeply dishonest. You disappoint me. I'd have expected
> better from you.

And do you have an argument to support the name calling?

> > Fair use isn't a right to do things--it's a limitation on the use of
> > copyright law to stop you from dong those things.

> Copyright being the *only* law that prevents you from doing similar things
> (such as copying all of a book to sell to other peple), mind you. (Not
> from dissimilar things, like breaking into your house.) Or at least pre-
> DMCA; I certainly wouldn't bet on what that law does to things.

No. Another thing that prevents you from copying a book is not having
access to a copy of it somewhere where you can copy it. Another thing
that prevents you from copying a computer program--not very
successfully, as it happens, but to some limited degree--used to be its
being on a copy protected disk. What keeps you from copying the Westlaw
database is that they sell you access but not possession, so you can't
copy it.

There are lots of things other than copyright law that can prevent you
from copying things, and preventing you from copying things by those
other methods is not an abuse of copyright and not a violation of your
fair use rights.

> Wait 70 years after the book was published and the author died, copy the
> book, I've yet to hear someone argue that there's a legal way to prevent
> this.

Sure there is. Buy up all copies and burn them or lock them up.
Difficult, but not illegal.

--
Remove NOPSAM to email
www.daviddfriedman.com
.

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