Re: Fair use defined (was: Re: Stallman Admits to Copyright Infringement)
The basic principles of legal construction weigh heavily against any
interpretation that would imply "legal but impossible." In other words, a
court trying to make sense of the statutory language is bound to assume
that the Congress must have had something in mind other than outright
deceit. In fact, my reading of the statutory language is considerably
broader on the point of fair use, where the Congress explicitly promises
that no one will lose the ability to do anything under the terms of fair
use that they could have done before the statute was enacted.
The problem is that, if one chooses to emphasize one provision of the
statute, then the other is reduced to an absurdity. I contend that the
MPAA/RIAA position on DMCA interpretation is inconsistent with the
language regarding fair use. The "legal but impossible" argument being
advanced by the MPAA is legally indefensible. On the other hand, the
blame rests squarely on the Congress for adopting language that was
intended to make everyone happy by promising contradictory things.
Since there is a traditional understanding that there are Constitutional
underpinnings for the fair use doctrine and not merely statutory ones, I
think it is likely that the courts will be forced at some level into
explicitly articulating whether or not this is correct. If the Congress
proves incapable of deciding questions of national policy because of
political paralysis and its own incompetence, then the inevitable result
is government by litigation.
On 2000-05-22 at 13:32 -0500, sam th wrote:
> I'm not entirely sure what you think is contradictory. The only thing
> that I can think of is that Congress said that it is not denying fair use,
> when in fact it make it impossible. However, these are not neccessarily
> contradictory (although I think the MPAA's interpretation of the DMCA is
> contradictory). However, the MPAA's position is that fair use is legal,
> just impossible. This is not an inherently contradictory position
> (although an evil one).