After Eldred – Summing, Agreeing, Concluding, Continuing

[updated 6/19] Seth restates his main thesis, and it’s well-taken.  Like I said from the very beginning, way back when this was discussed right after Eldred, I’m skeptical, too. I don’t know if the strategy would work. To sum up and go a little further:

1.  I’d say Ginsburg’s argument is more than that paragraph – it’s also the paragraph she spends on fair use specifically. Seth “agree[s] Eldred established fair use as a Constitutional requirement.” Thus, I’m not sure how you would read Ginsburg’s opinion as talking about a technical exception, so I’m not sure how the substantive/exception dichotomy is useful in discussing her particular argument. 

The real question is: how big is that substantive limit (or, rather, the substantive fair use right)?  As Seth has asserted, this is where the dichotomy becomes important – how do you get the courts to read Eldred broadly?  The SC could simply restrict the meaning of the limit to Constitutional fair use, and limit that to parody, scholarship, and criticism.  I’m not sure the DMCA does enough to take those away; that’s the easiest place for courts to say that technological inconvenience doesn’t matter.  Unless the SC brings in statutory fair uses–the ones we typically think of with VCRs, back-up copies, etc.–we might be pretty stuck. Or, the SC would have to bring more of those into Constitutional fair use, which is also an uphill battle.

2.  One thing that occurs to me: this argument would work best with something like Felten’s case.  That most certainly is scholarship and criticism.  Though I think Felten’s case dealt with trafficking, future cases might involve declaratory relief to make the fair use.  Moreover, it was someone who the courts respected.  One reason I suppose the EFF did not appeal Corley was that the SC might have said “they’re hackers!” and left it at that.  The key is getting a fair user that courts will look at favorably and can be most easily fit into typical fair uses.  It’s got to be something ordinary enough that courts would be more likely to lump it into traditional contours.  (Interoperation with garage door openers might be tougher, but what if it were with car tires – something that just wouldn’t make sense to the justices.  Of course, they could defer to anti-trust law, and that could get pretty tricky.) This is still a tough route, but it’s our best bet.

Of course, there’s some debate as to whether the DMCA even reaches scientific research.  Read with Eldred and Congressional hearings on the DMCA, courts might limit the DMCA rather than strike it down. Though not a total victory, it would save somebody some legal fees.

3.  That’s why I don’t really think of this discussion as people naively reading too much into the Eldred opinion.  I look at it as a starting place for the next person who gets sued.

[updated 6/19 to include the link to Edelman and to clarify where I think the dichotomy is useful.]