[Fsfe-uk] Re: EU Communication on the Management of Copyright and Related Rights

Ralph Janke rjanke at blueyonder.co.uk
Thu Jun 17 15:36:35 UTC 2004

Philip Hands wrote:

> MJ Ray wrote:
>> 2. DRM must not override fair use/fair dealing provisions, or things 
>> like the disability discrimination act (need to check EUCD Art5(2)(b) 
>> about this).
> I think you have the "fair use/fair dealing" concept a little out of 
> kilter with UK law.
> In the US, I have a feeling that they effectively have a right of fair 
> use, whereas in the UK fair dealing is a defence against a copyright 
> violation suit.
> That being the case, the fact that DRM might make it physically 
> impossible to get yourself into a situation where you might want to 
> claim fair dealing as a defence probably doesn't mean that you've been 
> deprived of any rights (at least as far as any IP lawyer is concerned)
> If we build our arguments on the assumption that we have the right to 
> perform the actions for which one might subsequently need to use fair 
> dealing provisions to defend, then I think our argument may be built 
> on sand.
I don't know why the two arguments should contradict each other. I 
believe both make sense in the context and I think we should build our 
case (or cases) on both of them.

1) We need to question why there is a copyright. Not to eliminate it, 
but to develop the purpose of it. I think, it is fair to say, that one 
could argue, there are only two kinds of states ideas ( and everything 
else IP is based on) can be in, private and public. One could also say, 
that if someone don;t want their ideas be used, they should keep them 
private. By publishing them they are transfered to the public domain and 
therefore can be used by anyone.

This was a very common view not too long ago. Alexander von Humbold had 
very strong feelings abount this issue concerning research at Universities.

If  we view IP in this way, we have to say that it is a fundamental 
right for everyone to use public ideas (otherwise I would like to see a 
way to collect royalties for using fire, or using a wheel ;-)). If we 
then say, it  might be a good idea to encourage people to transfer their 
ideas from the private to the public state, in order to forster 
"progress and advancements in Sciences and useful Arts", and in order to 
encourage people to do so, we have to grant them certain rights, then 
those rights are not natural rights (the natural right is to keep an 
idea secret, or private, but all public ideas are public domain), but it 
is a priviledge granted. Then, however, those priviledges must not 
interfere in natural rights, i.e fair use rights. If I pay in order to 
listen to a song, I have a right to listen it with any technology I 
choose to, since I do not pay for the technology, but for the Art. The 
restrictictions of usage must be minimal, since the "copypriviledge" was 
only granted to foster useful Art and Sciences in the public domain, not 
to restrict their usage, but to foster and encourage it.

This concludes for me that the "copyright" is no right, but a 
priviledge, that should not infringe more than necesary in the natural 
right of  usage that has been in existent long before the priviledge itself.

The advantage of the definition as a naturally existing right of fair 
use, allow the legal challenge without infringement. It is possible to 
challenge a too broad usage of copyright, or DRM before an infrigement 
happens. This is strategically better since in the eye of judge or jury, 
the prupetrator is the other side that tries to take away rights and it 
is not an excuse to defend against damages, nor have damages yet 
occured, therefore the other side has no legal active legal challenge 
available until that happens.  

2) The defense of fair use in a case of alledged copyright infringement 
is based actually on the same principle. An infringement can not be an 
infringement if there was no legal ground to restrict a right in the 
first place. Laws are often very contradictive. That is why we need 
courts and judges. Therefore the question is always which law, or 
natural right has a higher priority. I.e. a contract can be done 
perfectly correct, but if the consideration in a contract is illegal 
itself, the contract is never legally enforceable. In a similar matter, 
IP, DRM can only be enforceable if they do not infringe higher valued 
rights. If the justification of a law that I ground my legal argument 
on, is not in line with the intention of that law, than a judge will not 
allow such an argument to succeed, since it would cause mischief. If you 
can argue, that an alledge infringement might literally be infringement 
according to the law, but the intention of the lawmaker was a different 
one, since mischief rule comes to play, and you have successfully 
defended against an infingement of  copyright/DRM.

Therefore it is very important to base our argument on both columns, the 
laws themselves, and get as much fair use provision in them as possible, 
but as well on a more fundamental level of what the intention of IP, 
DRM, PATs etc are, in order to balance them with other more fundmental 
and natural rights, as freedom, liberty, persue of happiness etc.

> Obviously, IANAL, so that may all be nonsense.
> We might be better off arguing that various other EU counties (some of 
> which appear to have something like Fair Use Rights) will be at an 
> unfair advantage if we implement something that prevents us from 
> reverse engineering, when they have reverse engineering built into 
> their constitution as a right.
Unfortunately the UK does not have a written constitution (or not as a 
canon at least). Therefore it sometime seems to be in the eye of the 
Government, what the constitutional rights in the UK might be. However, 
it would also bge possible to argue, that reverse enginering is part of 
a freedom of learning and expression (therefore Human Rights). It also 
is based on centuries (or more) of tradition. Most of the scientific 
inventions are actually created by reverse enginering natural phaenomena 
(i.e. airplanes were build because of the study of wings of birds that 
sail in the breeze, etc...). Especially computer science and IT have a 
lifelong tradition of reverse engineering. IBM reverse engineered the 
PC. Microsoft reverse engineered (actually flatout stole) DOS. Reverse 
engineering is a tradition of the industry, therefore in some sense a 
natural law.

The only question is, what is reverse engineering, and what is stealing 
of code. You could argue that you look at someone sourcecode to reverse 
engineer it, and then yu write it yourself in some other way. However, 
mostly your thoughts will be giuded by your knowledge of the original, 
therefore you probably copy more than reverse engineer. However, if one 
person writes a feature document according to a product, and another 
person who has never seen the product, develops another one according to 
the descriptions, there is no direct transfer of original knowledge. 
This is a clean reverse engineering that can not be construed as 
copyright infringement. There might be patent issues though.

My two cents anyway,

Ralph Janke

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