Escape from Copyright

Donna has been on top of the Bowers v. Bay State case, including the petition for cert.  I don’t know a whole lot about contract law, preemption, and the interesting cases regarding shrinkwrap licensing.  I do know that if this case is upheld, and you play out the logic, copyright holders will be able to prohibit fair use through contracts.  Ouch.


In lieu of this case, it’s worth checking out Tom Bell’s “Escape from Copyright.”  He asserts that, because copyright and common law rights together could provide too much protection for copyright holders, they should choose between the two.  Elsewhere, Bell argues that leaving everything up to DRM and contract law might have many benefits for the public.


(I don’t really agree with his argument because of the way he treats the public’s interest in copyright.  He doesn’t adequately recognize the value in having fair use as a right and is pretty dismissive of pursuing the public interest through the political process.  His arguments would seem far more sound if I trusted that the market will be able to protect the public’s rights.)

Dan Bricklin Making The News

Today’s NYTimes features an article about Dan Bricklin.  Dan’s also written two interesting pieces lately about piracy v. shoplifting and CC licensing.  The latter has produced a great discussion.

Constitutionality of S-DMCAs

Greplaw (via Tech Law Advisor) brings up an interesting question: are the S-DMCAs unconstitutional?

This indeed is worth researching – I’ll try to read up on the relevant issues. Please, everyone, point me in the right direction. Where should I start? What specific powers / federal laws should I look at in terms of preemption? Commerce? Perhaps FCC regulations of telecommunications?

Kevin’s original post mentions that Congress has already legislated in this area. Well, have they? Are we talking about the DMCA here? And, if so, can we distinguish the two laws because one talks about copyrighted works and one just generally targets all video/audio transmissions? If that means protecting video/audio under state enforced contracts, does that create a preemption problem? To what degree is preemption solely trigged by attempts to frustrate national interests? Is federal law a baseline or a limit? (I guess I should figure that last one out before my ConLaw final. Heh.)

Re censorship – don’t these laws, at some level, resemble laws that ban anonymous speech? I immediately jumped to this angle because of the “concealing communications” language in the bills.

One key thing to remember: be careful of thinking of this in terms of copyright. These were not legislated under any copyright powers because the states have none. They focus on communication devices and transmissions, not copyrighted works. It seems Bowers might be relevant in this area – even without mentioning copyrighted works, the S-DMCAs will inevitably involve restrictive contracts that give added protections to copyrighted works.