Think of it this way–if the sound can reach my ears, it can also reach my recording device.

Yes, people should be satisfied with movies which have been copied using analog equipment and thus severely damaged by Macrovision. I mean, who are these people who demand copies of movies which are of such a quality that you can actually recognize the actors?

You missed the central point in Judge Posner’s
comment (nothing new here). He simply said that
it is possible to use contract to extinguish fair
use. Let’s me use your story about Emma and her
sick child to illustrate an example.

Knowing that sharing the original copy with
others will deprive her of market value, Emma
decides to require any buyer to sign a contract
promising not to share original copy with any
other people. That way, anyone who buys a book
from her can’t share it with any others including
sons and daughters. Emma would be so happy to
get money from 1,000 people to support her sick
child.

This example shows that it is possible to use
contract to extinguish the first sale right.

But, it is not foolproof. What if a buyer
forgets to take his book with him and the
book sits on a bench in a park? What will
happen? The contract that the buyer signed with
Emma has no force on anyone who happens to
pick up the book on the bench because contact
is only between the parties that agree to it.

With many contents going to digital format,
it is much easier to enforce contractal
obligations on the users. You would love that
and Emma would love to choose digital media
over print form to milk more money from the
population.

Then, why are you so upset?

To Shawn Abel,

Yes, contract law can trump fair use. It
already happened and it will continue to
happen unless the copyright law is amended
to prevent any preemption by contract.

To tc,

To illustrate how complex this topic will
become, GPL (General Public License) contains
additional restrictions on fair use. There
are some uses that are allowed by fair use
but not by GPL. If you accept the idea that
copyright abuse will lead to invalidation of
terms and conditions in the license, GPL and
many other open licenses will be affected. Do
you realy want that or do you really want people
to have the freedom to draw up contract even
if it is not on the same wavelength as copyright
law? Food for your thought.

Joseph Pietro Riolo
<[email protected]>

Public domain notice: I put all of my expressions
in this comment in the public domain.

Just a question.

You provide an insightful historical distinction on the practical meaning of fair use, vis-a-vis music or video content, but the argument must change when we consider other copyrighted material such as literature and software.

Language is, in essence, either copyable with 100% accuracy or not at all. Consider a situation where most literature is disseminated by e-book format, and where, as Justice Posner suggests, contractual obligations or technological barriers, or both, prevent any sort of copying whatsoever. There is no analog hole here, although I suppose there is the ability to retype word for word, but only to circumvent the tech barrier. If buyers of e-books are contractually obligated not even to read the book aloud or copy _any_ wording – which has already been attempted with ebook EULAs – then there is no fair use whatsoever. The same situation can apply to code.

When it comes to language, fair use (or as we call it up here, fair dealing) can be entirely extinguished with only a little work.

Even the example you provide – that of the analog hole – only addresses technological barriers. It does not reflect the issue that Justice Posner raised concerning contractual obligations between consumers who must buy directly from the copyright holders – contracts could deliberately wipe out fair use as a standard clause, leaving the individual buyer with little or no room for negotiation. The question is: will contract law trump fair use?

What happens if you don’t have a CD or DVD? You download a track – legally and paid for – to your computer, say. Unfortunately, you need a new computer but you can’t copy your bought and paid for track over. Similarly, you can’t transfer it to your MP3 player as you go out in the way you could with a CD. Neither can you use it to test drive that swanky new stereo in the shop. All of these uses are “fair” as far as I know. However, all are thwarted by DRM systems.

Even with CDs and DVDs fair use is now restricted. For example, I cannot write or produce a spoken review of a CD and incorporate short snatches of CD content to exemplify some point – the sort of things we do daily with text.

On the other hand Grokster-like services greatly reduce the cost of PUBLISHING AND DISTRIBUTION of intellectual product covered by copyright.

Copyright exists to encourage the creation of the useful arts and sciences.

They need encouragement because of barriers to entry, like printing and shipping costs.

While the net may simplify infringing, it also lowers the barriers of entry.

but your spin on this subject is becoming intolerable.

On the one hand, encryption technology and Internet distribution (that is, selling directly to the consumer rather than through a dealer, enabling the seller to impose by contract additional restrictions on the use of his product beyond those imposed by copyright law) may progress to a point at which the fair use privilege of copyright law is extinguished..

now wait a minute. encrypted CDs and DVDs can still be recorded using analog equipment – exactly as before – the difference is that you can no longer make and EXACT copy of the original.

this is not a restriction on fair use, it is a return to a standard of fair use that existed before digital media came into being.

look, no one ever complained that they were not able to press their own vinyl albums, or that they would not play on their 8-track decks, but what people today are arguing for is just this.

fair use extremists are demanding the right to make EXACT copies of the original: they want to be able to press their own vinyl albums from the original master for the price of the LP.

this is by any measure a huge expansion in the “right” of fair use and the obvious risks this exposes the copyright owner to seem far in excess of the obscure marginal benefits the consumer might enjoy.