Friday, March 6, 2009

Preventing fair use in an attempt to stop infringement

This might sound like a weird concept. Like making weapons illegal (knives, guns, everything that can be used to kill somebody) because someone might use them for the wrong purpose. Or like sending DMCA notices for all works containing copyrighted material even though some of them might be fair use (like the video from Lenz vs Universal). Or like protecting copyrighted material with software, and making it illegal to circumvent it even for educational and research purposes (oh, wait, that's already happening and perfectly legal).
Of course, there are huge differences between the exmples mentioned above, but it's hard to ignore the similarities. As weird as Universal's claim might sound (that they are not required to consider fair use before sending the DMCA notices), it is not hard to see where they are coming from. Effectively preventing fair use in an attempt to stop infringing has been happening for years under the DMCA. I am not trying to say that this is somehow wrong, but rather to draw an analogy and to explain why Universal's claim is not without a precedent.
So to be more precise, there is an obvious analogy between recording a video with copyrghted material in it and using it for fair use, and circumventing copyrght protection systems for educational and research purposes. But to understand how far the anaolgy goes, we need to know whether re-recording copyrighted material is considered circumventing its protection systems.
The copyright law states that to “circumvent a technological measure” means to "descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner" (here is the link). Did Lenz circumvent a technological measure? Well, she did re-record copyrighted material that probably had some protection. Did she have the right to do that? Maybe, after all it was fair use. Did Universal have the right to send a DMCA notice? Maybe, after all preventing fair use because of potential for infringement doesn't seem to go against the DMCA. So who is right? Probably those who call for laws less confusing than the current DMCA, and hopefully this is what will come out of the Lenz vs Universal case.

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