The basic principles of legal construction weigh heavily against any interpretation that would imply "legal but impossible." In other words, a court trying to make sense of the statutory language is bound to assume that the Congress must have had something in mind other than outright deceit. In fact, my reading of the statutory language is considerably broader on the point of fair use, where the Congress explicitly promises that no one will lose the ability to do anything under the terms of fair use that they could have done before the statute was enacted.
The problem is that, if one chooses to emphasize one provision of the statute, then the other is reduced to an absurdity. I contend that the MPAA/RIAA position on DMCA interpretation is inconsistent with the language regarding fair use. The "legal but impossible" argument being advanced by the MPAA is legally indefensible. On the other hand, the blame rests squarely on the Congress for adopting language that was intended to make everyone happy by promising contradictory things. Since there is a traditional understanding that there are Constitutional underpinnings for the fair use doctrine and not merely statutory ones, I think it is likely that the courts will be forced at some level into explicitly articulating whether or not this is correct. If the Congress proves incapable of deciding questions of national policy because of political paralysis and its own incompetence, then the inevitable result is government by litigation. -- Mike On 2000-05-22 at 13:32 -0500, sam th wrote: > I'm not entirely sure what you think is contradictory. The only thing > that I can think of is that Congress said that it is not denying fair use, > when in fact it make it impossible. However, these are not neccessarily > contradictory (although I think the MPAA's interpretation of the DMCA is > contradictory). However, the MPAA's position is that fair use is legal, > just impossible. This is not an inherently contradictory position > (although an evil one).
