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Sunday, April 19 2015 @ 03:56 AM PDT

Two words - Fair Use - Get To Know Them - You'll Miss Them


The United States, through the use of their "might is right" abilities in world trade and via secret negotiations of treaties, are trying to force the Digital Millennium Copyright Act (DMCA) onto any/all of their trading partners. Even if I felt that we needed tougher copyright laws (and I don't), why do I object to the DMCA being brought to Canada?

Why should YOU object to Canada adopting what the US is pushing us toward? Well you should read on for why I'm against it.

Two words - "Fair Use"

Along with these two words go the provisions of the United States constitution and its amendments, Bill of Rights, and the Supreme Court (and eventually its rulings) that no other country currently have as balances to a DMCA-like copyright law

These two words and the rules of the playing field they are used upon - those of the United States - almost make the DMCA a "balanced" copyright act.

The problem is that we here in Canada don't have "Fair Use" in the US sense, nor do we have a Supreme Court with the same powers as the US or the US' constitution and specifically its 1st but also including the 4th, 6th, 7th and 8th amendments.

Note: IANAL - I am not a lawyer

Fair Use allows several options to the public, summarized in University of Ottawa's Canadian Internet Policy and Public Interest Clinic document, that balance copyright that Canada's Fair Dealing does not allow. But more than that, Fair Dealing is an exhaustive list (private study, research, criticism, review and news reporting) - if what you want to do is not on the list you're out of luck - no recourse to the courts. Fair Use in the US is a grey area - you're allowed to do it unless someone challenges you in the courts AND WINS - and they don't always win.

  • No Parody
  • No Reverse Engineering
  • No Transformative Use
  • No Time Shifting
  • No Media Conversion

And to top it all off, even if we had Fair Use, the Technical Protection Measures and Anti-Circumvention areas of such a law make the ability to participate in Fair Use all but impossible.


That's essentially what the DMCA has accomplished through its anti-circumvention provisions. Under Section 1201(a)(1)(A) of the statute, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." In essence, no hacking allowed.

Now, that creates a huge conflict between fair use in theory and fair use in practice. Because if you want to take a digitally protected book or song or movie and make any number of fair uses of it, well, you probably can't. No backup copies. No excerpting for multimedia presentation. At least, not without breaking the encryption. And you probably can't do that without breaking the DMCA.

To be sure, the DMCA doesn't claim to eviscerate fair use. In fact, it contains an explicit exception: "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title." ( - registration required)

But we don't have Fair Use!!!!

And the European Union wants us to implement far more rigorous DRM/Anti-circumvention laws.

We get the vinegar of a strengthened DMCA without the sugar of Fair Use - even if we had a court system that could back up such Fair Use in the manner that the US courts have.

The ELectronic Frontier Foundation (EFF) says it best:

While it may be too early to draw final conclusions, it is plain that DRM technologies, backed by laws like the DMCA, pose a serious potential threat to fair use. While technical refinements may address or minimize some of the social costs that stem from an erosion of fair use, it is unlikely that they will entirely resolve the tension.

Even WITH Fair Use a DMCA-style copyright regime poses a threat. What will it do to us who don't have Fair Use?

And then there are the other areas where such a DMCA-style copyright law will affect you - you didn't think it was limited to just music and video and maybe books did you?

You'll lose access to the non-dealer network of car repairs as the manufacturers lock down their computerized control systems under the DMCA and prevent your mechanic from having access to them.

You'll lose the ability to purchase non-authorized replacement parts (toner cartridges for example) for your computer-laden systems.

You'll lose the right to secure your computer from unwanted and unauthorized and invasive software such as Sony's root kit.



Tag: dmca copyright fair use fair dealing


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