If You Want to Drastically Narrow Fair Use and You Know It, Clap Your Hands

I had a post in the queue about Patrick Ross’ DMCA article, and even though I guess I’m just piling on now, I can’t resist adding a slightly different angle.

Patrick’s article reveals why many DMCA supporters truly laud the law -
not because it prevents widespread infringing file-sharing (it
doesn’t), but rather because it drastically shrinks fair use.  I’d
be happy to argue over fair
use’s proper bounds, but that in many ways should be a separate issue
from
whether HR1201 is
good.  HR1201 is about allowing lawful uses – opposition should
thus have to prove why consumers shouldn’t be able to make lawful
uses.  Opponents of HR1201 must prove why copyright should be reframed around a right of access and that the DMCA is the proper tool to do so.  Otherwise, defining what ought to be fair use can be left for another
day.

Here’s the key passage from Patrick’s article:

“But if HR-1201 becomes law, every consumer could legally hack any TPM
by claiming fair use, and as fair use isn’t codified
, there would be as
many definitions of it as there are consumers. Consumers would be
legally sanctioned to break their contracts with the content provider.” (emphasis added)

Of course, fair use is codified.  It’s just not a set of bright line rules, and that’s probably for the best.  That’s how we get innovation like time-shifting or Google Print
- who could have predicted such uses ahead of time, distinguished them
from related but unlawful uses, and clearly protected them in the
statute?

Regardless, just because fair use is unclear doesn’t mean that it permits
everything.  HR1201 only permits circumvention for lawful uses; if a claim of fair use were
unfounded, consumers would still be liable.

What Patrick really seems to be saying is that he doesn’t like how
HR1201 would allow many lawful uses.  If that’s the case, he could
suggest targeted revisions to 107.  The
DMCA, on the other hand, is a blunt instrument that throws out the fair
use baby with the unfair use bathwater.  Patrick provides no
reason why even the sliver of uses he thinks are fair should be illegal
under the DMCA.  Nor does he show why the DMCA is the proper
instrument for altering fair use’s bounds, giving copyright holders and
service providers the right to redefine fair use unilaterally.

Though not considered at all in this article, Patrick could also be
against
HR1201′s revision to the DMCA’s anti-traficking provisions. Such
revisions could make decryption software potentially available to those
who want to make unlawful uses; in turn, they could weaken DRM’s
practical efficacy in restricting such uses.  Patrick could argue that
the DMCA’s enabling beneficial price discrimination outweighs the cost of constraining fair uses,
innovation, etc.  But he
has not attempted to do so, nor has he shown that DRM would be useless in enabling price discrimination even without the DMCA.