On Mon, 22 May 2000, Mike Bilow wrote:
> 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.
>
The problem with your interpretation from my point of view (not that I
wouldn't like it to be true, and you may well be), is that not *all* fair
use is eliminated by the DMCA. If you can see a work, you can comment on
it, quote it, parody it, cite it, etc. It's just that lots of fair use
can be excluded.
sam th
[EMAIL PROTECTED]
http://sam.rh.uchicago.edu
