Title: Digital Content Protection and Fair Use: What's the Use?
Abstract: It was October of 2010, on a Saturday afternoon. Tom and Kelly sat down and ordered a recently released blockbuster smash hit from their digital cable television pay-per-view system. Halfway through the movie, Tom’s text-enabled wireless phone alerted him of a problem at his office. ‘‘Looks like they’re going to need me at work for a few hours. I’m really sorry. I’ve got to go. How about we record this on our PVR1 and watch it together later?’’ ‘‘No, Tom, we can’t do that. This is one of those ‘copy never’ movies, remember? It’s either watch it now, or pay for it all over again later.’’ ‘‘What a rip off! Well, let’s just hook up our old VCR. It won’t be as crisp as the digital PVR, but at least we’ll get something for our money.’’ ‘‘I hate to tell you this, Tom, but our VCR won’t work either. I tried the other day, but the television won’t allow ‘copy never’ digital programs to travel out of unprotected analog outputs. Looks like we just threw away our ten dollars.’’ * Ben graduated from the University of Colorado School of Law in May 2004, and currently works as an associate in the Intellectual Property group at the law firm of Faegre & Benson, LLP. The author would like to thank Andy Johnson and Phil Weiser for their insightful comments on various drafts of this paper. 1. PVR means personal video recorder. 426 J. ON TELECOMM. & HIGH TECH. L. [Vol. 3 ABSTRACT 425 INTRODUCTION 426 I. BACKGROUND OF THE FAIR USE DOCTRINE 429 A. Introduction to Copyright Law 429 B. Explanation of Selected Fair Use and First Sale Rights....... 430 1. Time-Shifting 431 2. Space-Shifting 432 3. Educational Use 433 4. Critical Use 433 5. First Sale Doctrine 434 C. Economic Rationale for the Fair Use Doctrine 434 II. DIGITAL RIGHTS MANAGEMENT, ENCODING RULES, AND OTHER CONTENT PROTECTION MECHANISMS 438 A. Anticircumvention and the DMCA 438 B. How Does Digital Rights Management Work? 439 C. How Do the Encoding Rules Work? 440 D. How Does the Broadcast Flag Work? 442 III. DIGITAL CONTENT CONTROL AND FAIR USE 443 A. Encrypted or Encoded Copyrighted Digital Goods Will No Longer Be ‘‘Public Goods’’ 443 B. Gordon’s Market Failure Fair Use Test Is Not Met 444 C. Ku’s Creative Destruction Fair Use Test Is Not Met 445 D. Non-Economic Fair Use Rationale 445 E. Old vs. New: How the Old Fair Use Rights Will Look Under A New Content Control Regime 448 1. Time-Shifting 448 2. Space-Shifting 448 3. Educational Use / Critical Use 449 4. First Sale Doctrine 449 F. Why Carry Fair Use Forward? Fair Use as Affirmative Defense, Not Cause of Action 450 CONCLUSION 451 425 INTRODUCTION 426 I. BACKGROUND OF THE FAIR USE DOCTRINE 429 A. Introduction to Copyright Law 429 B. Explanation of Selected Fair Use and First Sale Rights....... 430 1. Time-Shifting 431 2. Space-Shifting 432 3. Educational Use 433 4. Critical Use 433 5. First Sale Doctrine 434 C. Economic Rationale for the Fair Use Doctrine 434 II. DIGITAL RIGHTS MANAGEMENT, ENCODING RULES, AND OTHER CONTENT PROTECTION MECHANISMS 438 A. Anticircumvention and the DMCA 438 B. How Does Digital Rights Management Work? 439 C. How Do the Encoding Rules Work? 440 D. How Does the Broadcast Flag Work? 442 III. DIGITAL CONTENT CONTROL AND FAIR USE 443 A. Encrypted or Encoded Copyrighted Digital Goods Will No Longer Be ‘‘Public Goods’’ 443 B. Gordon’s Market Failure Fair Use Test Is Not Met 444 C. Ku’s Creative Destruction Fair Use Test Is Not Met 445 D. Non-Economic Fair Use Rationale 445 E. Old vs. New: How the Old Fair Use Rights Will Look Under A New Content Control Regime 448 1. Time-Shifting 448 2. Space-Shifting 448 3. Educational Use / Critical Use 449 4. First Sale Doctrine 449 F. Why Carry Fair Use Forward? Fair Use as Affirmative Defense, Not Cause of Action 450 CONCLUSION 451
Publication Year: 2005
Publication Date: 2005-01-01
Language: en
Type: article
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