In a follow-up to last night’s story on the court case with implications for the DMCA, lawyer Nilay Patel takes a look at the case and declares it does not quite have the implications everyone is saying it does.

Patel reminds us that even if the decision was binding, at the moment it is only valid in the 5th circuit states of Louisiana, Mississippi, and Texas—it’s going to take a review by the Supreme Court to make it the law of the land (or not). The case represents a “split in the circuits”—a disagreement between two or more of the US’s regional appeals courts circuits—and thus the sort of thing the Supreme Court is supposed to resolve. So I guess we’ll see.

He also feels that it is a narrower decision than most people believe, only applying to breaking DRM for access to content, not copying of it. He notes that ripping a DVD would still be a copyright violation, and hence not a “fair use” for the purposes of the revised DMCA enforcement.

Patel doesn’t bring up using an unauthorized player (such as those for Linux) to play the DVD, which seems to be the very definition of breaking DRM for access, and also doesn’t address the RIAA vs. Diamond Multimedia decision that supposedly legalized copying for “space-shifting” purposes. (I’ve asked about it in the comments, and will see what he says.)

All in all, today has been quite a busy day for fair use, between the court case and the DMCA exemption announcement. Marshall Kirkpatrick on ReadWriteWeb has an editorial about fair use and why it may now be more important than ever to our future.

Kirkpatrick covers the four-factor test for fair use—purpose and character, nature of the work, amount and substance of portion used, and effect of use on the market—then explains that the unprecedented ease of making use of portions of others works now means that creativity no longer needs to be shackled to scarcity. An e-book can be disseminated everywhere, while a printed book is tied to the number of physical copies. A YouTube video can be seen by anyone and everyone who wants to watch it.

This digital economy could be called post-scarcity not because scarcity is no longer realistic or valuable, but because it’s no longer a precondition for the creation of value. In fact, scarcity may produce less total value in the future than the ecosystem of augmentation, annotation, remixing and fair use of the items formerly considered scarce will.

But much of this creativity needs fair use to work, because the portions of works that are getting remixed are greater than the standards that applied to physical work can countenance, and as simple as copying and pasting. There need to be new standards that apply to the digital economy or a lot of potential value could be lost.

Kirkpatrick sees the DMCA exemptions as a potential first step toward that. I hope he’s right, and that the appeals court case may have some beneficial effects too. But I suspect we may still have some ways to go before laws are truly fair about fair use.


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