Contract or License?
Rod Dixon, J.D., LL.M.
rod at cyberspaces.org
Sat Sep 15 00:31:05 UTC 2001
Hmm... You were on much better footing before when you appeared to stay
close to traditional copyright. Your statements below about 1201 of the DMCA
are not accurate. I doubt that the word "content control" appears anywhere
in 1201; that section focuses on access controls and the circumvention of
access controls, which have nothing to do with section 106 rights.
If your point is that blocking access to a work effectively means all uses
of the work are subsumed under copyright, I cannot agree with that point. As
you will recall, copyright law must be anchored by its constitutional basis
set forth at Art. I sec. 8, cl. 8. I suspect what the DMCA has to do with
that the Supreme Court will inevitably have to tell us. Consequently, your
conclusion based upon section 1201 of the DMCA is premature. We will have to
see how much of the DMCA survives challenge.
> -----Original Message-----
> From: Karsten M. Self [mailto:kmself at ix.netcom.com]
> Sent: Friday, September 14, 2001 7:39 PM
> To: license-discuss at opensource.org
> Subject: Re: Contract or License?
> on Fri, Sep 14, 2001 at 06:20:19PM -0400, Rod Dixon
> (rodd at cyberspaces.org) wrote:
> > On Fri, 14 Sep 2001, Karsten M. Self wrote:
> > > on Fri, Sep 14, 2001 at 09:31:10AM -0700, Lawrence E. Rosen
> (lrosen at rosenlaw.com) wrote:
> > > > Karsten,
> > > >
> > > > > > Copyright law does not restrict use of an authorized copy.
> > > > >
> > > > > It does now.
> > > > >
> > > > > Under 1201, there are various uses of a copy which are
> prohibited. If
> > > > > a content control mechanism prohibits certain types of use, then
> > > > > circumventing the control (arguably a use) is prohibited,
> under Title
> > > > > 17.
> > > >
> > > > Copyright law does not prohibit use. It prohibits reverse
> > > > (and similar activities) under certain circumstances. I
> didn't intend
> > > > to be subtle about the meaning of the word "use."
> > >
> > > I hate to be the one to out-lawyer the lawyers....
> > >
> > > OK, no I don't. ;-)
> > >
> > > But I did want to point out that the expression v. usage boundary has
> > > now been blurred.
> > If I recall correctly, we have discussed this issue before on this list.
> > It seems to me that Karsten and Larry are saying the same
> thing, but doing
> > so using different language. The Copyright Act grants copyright holders
> > exclusive rights over: reproduction, public display, distribution,
> > derivative works, public performance (and more recently, digital
> > transmission of sound recordings). None of those rights explicitly refer
> > to "use." Indeed, copyright holders cannot control all "uses" of their
> > works because of various copyright doctrine that preclude such control
> > such as, scenes-a-faire, idea/expression dichotomy, and fair
> use. Despite
> > this fact, however, copyright law and software is not an easy
> fit, and the
> > Mai v. Peak case is still good law. Today, a copyright holder
> may control
> > the RAM copy of a software copyright-protected work. The fact that a
> > copyright holder can control his or her work at the level of a RAM copy
> > may be big trouble for us. Ostensibly, one can hardly "use' software
> > without the author's permission, if he or she can control copying at the
> > point of a RAM copy. This practicial consideration, I believe, is
> > Karsten's point. Indeed, section 117 of the Copyright Act is a
> > - - a limitation that is quite limited - - on this RAM right (no pun
> > intended).
> Not quite. There are specific usage restrictions imposed by the DMCA
> that aren't strictly limited to RAM images. From my earlier comments to
> the free-sklyarov list (which focusses more strongly on DMCA issues):
> on Thu, Sep 13, 2001 at 09:20:29AM -0400, Roger Sperberg
> (rsperberg at yahoo.com)
> > Long before there was the capability for computers to read a text
> > aloud to you, the audio rights for books were separated out as a
> > revenue source for publishers.
> Audio rights as expressed by phonocopies. Not audio rights as expressed
> by a different interpretation path of the same fundamental underlying
> copy of data.
> Any attempt to use copyright law to constrain use of a copy of a work --
> use in such a form that does not produce a fixed copy in tangible
> medium, and text-to-speach is such non-fixed expression of a work -- is
> creating a fundamentally new interpretation of copyright law. Section
> 1201 has already done this, but barring 1201, I cannot see
> text-to-speech as an exclusive right.
> Copyright specifically addresses various works covered by copyright
> (sections 102 and 103):
> (a) Copyright protection subsists, in accordance with this title, in
> original works of authorship fixed in any tangible medium of
> expression, now known or later developed, from which they can be
> perceived, reproduced, or otherwise communicated, either directly or
> with the aid of a machine or device. Works of authorship include the
> following categories:
> (1) literary works;
> (2) musical works, including any accompanying words;
> (3) dramtic works, including any accompanying music;
> (4) pantomimes and chreographic works;
> (5) pictoral, graphic, and sculptural works;
> (6) motion pictures and other audiovisual works;
> (7) sound recordings; and
> (8) architectural works.
> (b) In no case does copyright protection for an original work of
> authorship extend to any idea, procedure, process, system, method of
> operation, concept, principle, or discovery, regardless of the form in
> which it is described, explained, illustrated, or embodied in a work.
> As I read that, securing copyright protections to prohibit a mode of
> extraction of expression is expressly excluded by 102(b), as a "process,
> system, [or] method of operation".
> IANAL, TINLA
> Karsten M. Self <kmself at ix.netcom.com>
Praying for the victims.
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