Copyright, Fair Use, Free Speech asks “Whatever happened to fair use?” and provides a nice overview of the issues at play between the record industry, which wants to control exactly when and how you listen to their product, and the listener, who just wants to pay $15 and be left alone to listen, rip and burn that CD however she wants.

And yesterday a California State Appeals court ruled that the code for the DeCSS program that allows a user to decrypt the data on a video DVD so that it can be viewed on a Linux box or copied into another format is protected under the 1st Amendment as “pure speech.” So, at least in the state of California, you can distribute this code to your heart’s content. Unfortunately this decision has little bearing on the fight over DeCSS going on at the federal level, which so far has rejected the argument that the code is protected speech. Both Wired and ZDNews report.

These two issues are inextricably linked, because using DeCSS allows a DVD owner to exert her fair use rights over the movie in the DVD, by making a backup copy of it, for example. But, like a simple photocopier, technologies that allow for fair use duplication also typically allow for duplication that violates copyright laws. The line between these is hard to build into any technology — the judgement still lies with humans. The entertainment industry’s attack on technologies that allow duplication represents its unwillingness to trust a user to act in a fair way, as well as the industry’s clear desire that fair use rights not exist at all. Unfortunately, in effect, outlawing duplicating technologies or hobbling them so significantly as to render them useful only under the industry’s direct control is like outlawing cleaning agents, darts or kitchen knives because they can be used for harmful things in addition to their constructive uses.

It remains to see how fascist our elected representatives are willing to become in order to save us from ourselves. Of course, these are usually the same reps. who place immense faith in the libertarian ideal of the free market, which, all too ironically, is founded on the principle of leaving people to do as they will, but with the knowledge that they risk consequences if their actions are harmful. It seems like our Congresspeople are much more willing to trust GE, Microsoft and Disney than you or me. Somehow they interpret copying that $15 CD as more dangerous than operating a coercive monopoly. I wish I could muster some surprise at that.






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