On Sat, 28 Aug 2010 06:21:02 -0400, Jonathan M Davis
<[email protected]> wrote:
On Friday 27 August 2010 22:47:54 Nick Sabalausky wrote:
"Jonathan M Davis" <[email protected]> wrote in message
news:[email protected]...
> On Friday 27 August 2010 21:58:30 Nick Sabalausky wrote:
>> "Steven Schveighoffer" <[email protected]> wrote in message
>> news:[email protected]...
>>
>> > Fair use protects copying for reasonable usage (such as backing up
>> > your
>> > software, or transferring it to another medium for your own
benefit).
>>
>> Not in the US.
>
> It was certainly my understanding that backing up software was covered
> under
> free use.
(IANAL)
"Fair use" only exists in US law in the same sense that "Plessy v.
Ferguson" ("Separate but equal") exists. Plessy v. Ferguson is still in
the books, but it's effectively rendered dead by "Brown v. Board of
Education" (for good reason, of course). Similarly, "Fair use" still
exists in the books, but it's effectively rendered dead by the DMCA (for
shitty reason, of course). Only real difference I see is that "Plessy v.
Ferguson" and "Brown v. Board of Education" are case law and "fair
use"/DMCA aren't, but I don't think that makes any real difference (sure
as shit doesn't make any *practical* difference).
Yea, DCMA only overturns fair use when "copy protection" is used, but
that's trivial enough: all you really need to do is to slap a "consider
this copyrighted" bit into it (and there's probably even super-low-tech
ways to do it that would be compatible with, say, a book or CD Audio)
and
declare "this is DRM", and there you go - no more pesky "fair use" to
get
in the way of corporate greed.
Well, since both fair use and the DMCA are law, and they contradict each
other,
I believe it would take a court ruling to say which won out, and even
then it
could easily depend on the exact circumstances of the case. Some
situations
might be deemed legal under fair use while others might be deemed
illegal due to
the DMCA.
Personally, what I'd really love to have happen is have a case go to
court where
someone did something under fair use which was illegal under the DMCA
and have
at least some portion of the DMCA overruled by the Supreme Court due to
it
violating fair use. But I can't imagine the odds of that happening are
very
high. After all, the DMCA has been around for a while now, and it hasn't
happened. Also, odds are that it would happen in a suit by a big
corporation
against an individual, and the individual wouldn't be able to afford to
take the
case that far, so it wouldn't actually get to the Supreme Court to be
ruled on.
In any case, I can dream, I suppose. The DMCA is one of the worst laws
ever
passed, but there's not much that we can do about it.
DMCA will eventually be repealed. It goes against existing laws and
fair-use. There are efforts currently being made to alter or repeal it
(see http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act).
FWIW, the lack of funds for someone with a real chance of getting the DMCA
to be tested by the supreme court is not an issue, EFF will pick up the
bill in a heartbeat :)
-Steve
