Boucher: DMCA-Fixing Bill "Will Win"
Subject:   Response from Scott Barnett
Date:   2003-01-14 21:48:51
From:   rkoman
I received this response to the interview via email. Thanks for writing, Scott. However, I think it's a bit of semantics to pick on his use of the term "fair use"; the Betamax case seems to clearly say that viewers have the right to make copies of tv shows for their convenience. And software customers have the right to make backup copies of the software they purchase. Are those "fair use" rights? Technically, I'm not sure, but they do seem to be personal use rights, which is what we're really talking about. Both of those rights can be turned off with technology, and what Boucher is saying is the law should preserve what technology could otherwise revoke. See my interview with Lessig, Code + Law, for more ruminations on this line of thought.

Sorry but Rep. Bouchard needs to read the statute on Fair use a little closer before he can say the DMCA infringes on the "fair use" of the individual.

for reference:

Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in 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.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Thus, nowhere herein do we see any room for "personal" use of materials. There is NO "Fair use" as Bouchard describes, or perhaps understands it. Fair use doctrine was created for educational, critical, and perhaps satirical use and analysis of works, not for you and me to make basement tapes. Other aspects of Title 17 may refer to such uses, but they are not defined as "Fair Use."

What perhaps is being lost in all this is that we are growing a generation of electronic free wheelers, who think open source means open doors to any and everything. I teach students to make creative works and also try to teach them respect for the creative works of others...someday it could be their masterpiece being distributed and dissected without renumeration or credit. Yet despite the limitations of current copyright law, and the onerous statute DMCA, it is appalling to see bandwagon legislators defending their quick fix bill upon ill advised and poorly researched notions. Mr. Bouchard may have a point about the DMCA as poor lawmaking, but he should do his homework before framing the justification of the fix on "fair use." Too many people, educators, journalists and legislators alike have all erred in their definition and understanding of fair use, to the detriment of a generation of Internet and multimedia users and creators.


Scott B. Barnett
Asst. Professor of Communications
Quinnipiac University