Law in the Internet Society

View   r15  >  r14  ...
BrianSFirstPaper 15 - 25 Jan 2010 - Main.EbenMoglen
Line: 1 to 1
META TOPICPARENT name="FirstPaper"
This document is ready for a first review. Anyone in the class is also welcome to comment. I have revised portions of it to integrate the comments thus far.

The DMCA: Striking a Better Balance

Line: 77 to 76
 Thank you for the detailed citations and comment. I appreciate it. I thought about approaching this essay initially from a First Amendment/fair use angle. I actually wrote in an initial, barebones analysis of the O'Brien test being applied in my first several drafts. I deleted it only because I didn't think I could do it justice in 1000 words. It is a matter I intend to return to, however, in my writings in the coming years. I will look back on this post to your citations when I do so. Thank you.

-- BrianS - 24 Nov 2009

I'm not sure why careful legal analysis has to be joined to political unrealism here. The copyrights industries had the money to buy the DMCA from a corrupt Congress and they have the money to keep it. Fair use is a defense to infringement in US copyright law, not an affirmative right or a limitation on copyright, and there isn't any realistic political leverage to be used on that front. Whether a better First Amendment position would have been successful in Corley is uncertain: I advocated for one among the lawyers, but the retention of Kathleen Sullivan was the prelude, oddly enough, to an abandonment of the best First Amendment arguments there available, largely for reasons advocated by Pamela Samuels. I thought Pam was wrong then, and the forcefulness with which Judge Newman rejected our position in the Second Circuit opinion seemed to me back then to confirm my view. I now think it didn't matter at all.

It is obvious, unless you drink entertainment industry Kool-Aid, that DMCA-like paracopyright is a very bad idea. But they have both money- and image-creation ability on their side, and in the US they are the most adroit lobbyists of all. They have spread these conceptions not only into one bad US statute but into the fabric of EU law, and global trade regulations. Your problem is not writing law review prose about what's happened or why it is bad: your problem is figuring out how to destroy the industry or its political influence before it locks up all the cultural works of the 20th century by controlling all the devices of the 21st, and—in coopetition with the network operators—buries its politics in the substance of the Internet itself. You're not going to do it this way.
\ No newline at end of file

Revision 15r15 - 25 Jan 2010 - 14:47:57 - EbenMoglen
Revision 14r14 - 28 Nov 2009 - 06:31:36 - BrianS
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM