FC: Charles Sims: The DMCA does not limit fair use "at all"

[Declan McCullagh <declan@well.com>]

Chuck Sims is an attorney at Proskauer Rose who represented the eight movie 
studios suing 2600 magazine over DMCA violations. The studios won 
near-completely at the trial court and before the Second Circuit appeals 
court, and 2600 did not appeal to the U.S. Supreme Court.

The Second Circuit concluded: "The DMCA does not impose even an arguable 
limitation on the opportunity to make a variety of traditional fair uses of 
DVD movies, such as commenting on their content, quoting excerpts from 
their screenplays, and even recording portions of the video images and 
sounds on film or tape by pointing a camera, a camcorder, or a microphone 
at a monitor as it displays the DVD movie. The fact that the resulting copy 
will not be as perfect or as manipulable as a digital copy obtained by 
having direct access to the DVD movie in its digital form, provides no 
basis for a claim of unconstitutional limitation of fair use." 
(http://www.eff.org/Cases/MPAA_DVD_cases/20011128_ny_appeal_decision.html)

As for Chuck's point about Politech posts, this list is only as good as the 
submissions I receive. Right now, most of what's written about the DMCA is 
hardly flattering -- the people who support it as written don't *need* to 
say much, and they don't.

Previous Politech message:

"DMCA is a 'copyright cudgel,' from Chron. of Higher Education"
http://www.politechbot.com/p-03819.html

-Declan

---

Date: Wed, 31 Jul 2002 09:43:20 -0400
From: "Charles Sims" <CSims@proskauer.com>
To: declan@well.com
Subject: Re: FC: DMCA is a "copyright cudgel," from Chron. of HigherEducation
MIME-Version: 1.0

Declan:
Sloganeering is not journalism, and to repeat (or republish) the canard 
that "fair use is dying" is preposterous.  As you know, and as your readers 
should know, the fair use doctrine of copyright law is unchanged since 1976 
(indeed, since the 1840's, when Justice Story famously explicated it), and 
it has not been amended or altered by the DMCA.  The DMCA does not impact, 
at all, the fair use rights that US law has provided for more than 160 
years.  It has not amended, or changed, Section 107 of the copyright law, 
which now embodies the fair use defense, at all.  So  quote and criticise 
and review to your heart's content; but try to avoid the knowing falsehoods.
You want to stare at or photograph a Picasso in someone's home, or a 
never-published manuscript of Orwell in someone's office, the better to 
criticise or review them?  You can't.  But not because of the DMCA; the 
reason is that fair use has never been a tool to obtain access.  




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