Open Access News

News from the open access movement

Saturday, March 08, 2008

Rebalancing fair use and anti-circumvention

Pamela Samuelson, A Reverse Notice and Takedown Regime to Enable Public Interest Uses of Technically Protected Copyrighted Works, a one-hour MIT World webcast of a talk recorded on November 6, 2007.  (Thanks to Gary Price.)  From the blurb:

...[In pushing for anti-circumvention legislation,]industries’ starting contention was that “you don’t have a right to make a fair use of something you don’t have lawful access to.” So they outlawed the tools for circumventing technical protections. But while breaking a DVD’s code is a violation of the law, Samuelson believes “you have lawful access to a DVD you bought, and you ought to be able to bypass it to make fair use.” So it should be OK to bypass TPMs to gain fair use, she says, and that’s what the debate is about.

Through recent court cases, fair use claims are nibbling away at prohibited circumventions. And a group led by Samuelson has come up with a remedy she calls “reverse notice and take down.” Through this, someone seeking fair use gives notice to a copyright holder that uses a TPM, and asks to make fair use of desired material. The copyright holder then has an obligation to either take down the TPM or explain why not. If the owner doesn’t respond at all, “the fair user can go ahead and hack as they want.” If the copyright owner objects, the fair user can seek declaratory judgment to enable fair use.

This puts a burden on the prospective fair user, acknowledges Samuelson, but over time, case by case adjudication “could establish principles to establish balance in anticircumvention rules.” ...