Fair use or foul play?

THE OTHER DAY I found a video of a kids’ movie I bought for my son years ago. Because my son has long outgrown the video, do I have the right to give it to a friend with kids young enough to appreciate it?

I have found myself frequently raising this example in correspondence with readers about abuses of traditional fair use, free speech, and first-sale rights under the Digital Millennium Copyright Act (DMCA). With Congress considering even nastier laws that would hardwire copyright-holder protections into all types of digital devices, readers see many complex and troubling issues on the horizon.

“The DMCA … is a particularly heinous law since it protects no one and hurts everyone,” writes one reader. “But what are we to do about it? The music, movie, and software industries have over half of the Congress in their very deep pockets. And the sad part of it is that none of the ‘violations’ of this law cause them [the copyright holders] any harm. People who copy or pirate software or buy used copies of software that is no longer sold through any other channel were never going to pay for the product anyway.”

Even before the most recent congressional proposal was introduced (one that would allow copyright holders to hack peer-to-peer networks), many readers had already been expressing dismay with the legislative and/or regulatory efforts being pushed by the entertainment industry. “This is scary,” wrote a reader concerning the scope of one of the proposed laws. “If passed, does this mean that someone’s digital hearing aid would be shut down if he/she was listening to Attack of the Clones? The powers that be have chosen to exclude the innocent consumers from participating in the smoke-filled room process.”

Gripers have also continued to report their own run-ins with the DMCA and/or the business practices it encourages. Even tiny ISPs and Web hosting services say they have found it necessary to keep a lawyer close at hand to be ready to deal with DMCA takedown orders. Numerous readers have recounted situations in which they have had online auctions of legal copies of software programs arbitrarily blocked by the publisher. Perhaps most depressing of all are the stories from readers about recently purchased CDs or DVDs that just don’t work in a particular player, apparently due to “digital rights management” copy protection schemes.

One reader was flabbergasted to discover a discounted DVD player she had just purchased could not play all the DVDs she purchased with it, apparently because it was not compatible with the most recent DRM (digital rights management technology). “The store owner said I could buy a more expensive brand name model that would be compatible with the DRM technology the newer DVDs are using, but even then there’s no guarantee it would play the next DVD I buy,” she writes. “It’s criminal that they can sell you a DVD without warning you it doesn’t work on all DVD players. What ever happened to the idea of industry standards?”

Several readers point out that, although the DMCA may be flawed, the problems it was intended to address are real. “When a company like Novell cites the DMCA to pull a product from auction, they do so over an understandable concern,” writes one reader. “Piracy is big business, after all, and not just for lawyers. And auction sites are among the favorite distribution channels for illegally gained products of any type. The problem with the cited situation between the little guy selling an unused and unneeded copy of outdated NetWare and Novell’s rapid action to shut down the auction is that without the DMCA there is no process in our slow and complex legal system to protect a company from loss in the quick and easy Internet market. By the time Novell’s lawyers could track down, verify, and obtain an injunction against such a sale, a potential offender could have completed his transaction and disappeared. Now, is that any more fair than Novell telling eBay to halt the auction because they cannot quickly verify the sale wasn’t illegal?”

OK, that is a valid point. It’s certainly true that a lot of illegal software gets sold on online auctions. Personally, I’m not opposed to the DMCA being used to shut down suspect auctions until the seller can file a counterclaim proving he or she has the right to sell the software. After all, taking down an online auction isn’t like the ISP takedowns, where the DMCA’s pull-the-plug-and-ask-questions-later approach can cause serious harm. But what I am against is the tendency of software publishers to use the DMCA to close down auctions, depriving customers of the right to resell legal copies. Remember, in the case of the NetWare auction, Novell wasn’t accusing the online seller of auctioning a pirated copy — the company demanded the auction be closed because Novell’s license does not permit transfers. So the seller had no recourse even to the DMCA’s counterclaim mechanisms, because proving he had a legal copy of Netware wouldn’t matter (for more on the Novell and the DMCA, see ” Draconian DMCA “).

So returning to my kid’s old video, do I have the right to give it away or even resell it? Under traditional interpretation of copyright law, there’s no question that I do. And because it’s an old video, I don’t have to worry about whether or not it will play in my friend’s VCR.

Why should that change because a company decides to slap a license agreement on its product or insert a copy protection scheme in it? It shouldn’t. Yet in the DMCA era, it seems as if it does. Congress has already sold out some very basic rights, and with elections coming and campaign coffers needing to be filled, our politicians appear eager to sell out some more. What can we do about it? I recommend you go to https://www.eff.org and learn how you can tell your representatives that you have a vote and plan to use it.