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Originally Posted by Kevin-SFBucks
You can't use public domain in your example and have any credibility at all.
Putting DRM on public domain content would not only be silly, it would be counter-productive. The sheer definition of PUBLIC DOMAIN is that the content itself is available to the public. The copyright restrictions have been removed by statutes.
DRM is a restriction for multiple reasons. Venue (such as the machine in your example), availibility, format, and multiple others. The reason that people are objecting to DRM is that it is counteracting their ability to time-shift and to format-shift, which so far have been shown as fair use exemptions. If fair use is what it is, then DRM itself would control someone's ability to utilize what they have rights to, yes?
If Fair Use doctrine was the controlling factor, DRM would be entirely illegal.
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Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including
As i have already pointed out repeatly the court have ruled (i even quoted the paragraph from the case) that this is an exclusionary, or notwithstanding clause.
IT basically means that the exclusive rights you are granted by the act don't apply to fair use.
In a sense your content is "public domain" for the scope of "fair use".
This is why my example of DRM "public domain" content is legitimate.
Let me give you another example for your pee brain
if i shot some content featuring the pornstar "august night" and i but a branding bug with her name across the bottom of the content.
If i then put the content up on all the free content sites, gave it away on this board with the statement "do whatever you want with as long as keep the branding bug intact"
then for the scope of "keeing the branding bug intact" the content is effectively unprotected by the copyright act. IT is effectively in the public domain for that scope.
Can you DRM that content ? YES
Can you claim infringement if someone else distributes the content ? NO because everyone else has the right
Can i claim infringement if someone choose to distribute it out of scope ? YES because i only gave up the rights for the scope "keep the branding bug intact"
the same is true with "fair use" the only difference is that instead of giving the right away for the scope after you have been granted said right, YOU ARE NEVER GIVEN THE RIGHT AT ALL.
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You keep addressing Fair Us the beat all end all when in reality it is a case by case reality that the courts have no clue how to define (yet you appear to have a textbook or library full of knowledge concerning it). The truth is that fair use could change tomorrow and you know it. The only validity to this date are a handful of decisions.
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If that was true the law would not have defined "fair use" and it did.
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There is no logical way that encoding something is an acceptable way to control infringments, yet outside of that encoding, it's free reign and the user inherently believes the inference is that they can do as they wish with the content in question.
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You have to remember that in our arguement i have already cede the point that downloading content you HAVE NEVER BOUGHT A RIGHT TO is an infringement.
I have ceded the point that sharing a file IN IT ENTIRETY to someone who has never bought a right is an infringement.
You don't need to encode anything to go after these people. and it fact i have EXPLICITLY SAID THESE PEOPLE SHOULD BE TARGETED.
We are only talking about two areas
- Downloading content for RIGHTS YOU HAVE ALREADY PURCHASED
- seeding an incomplete and broken copy that in and of itself CAN NOT BE USED
until you prove you have a right to DOUBLE SELL THAT RIGHT TO ACCESS
then "the effect of the use upon the potential market for or value of the copyrighted work." is zero because you have not been granted the right to double sell.
Until you explain how providing an unusable copy of the content in and of itself grants access to the content then "the effect of the use upon the potential market for or value of the copyrighted work." is also zero.
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What that in essence states is that producers are required/strongly encouraged to encode their content (to either protect something that statutes are protecting anyway or admitting to the fact that copyright protections have been overrun and there is no protection anymore) which in turn places an economic burden that is neither necessary or justified. Courts are not in the business of requiring you to spend more money to succeed. They apply the law equally. Your assumptions are ludicrous.
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Your talking about extending your right beyond those granted by the law (because the law exclude fair use from your ACT assigned exclusive rights) using technology.
This is an area that is NOT protected by the Statutes, it is infact explicitly excluded, the economic burden is cause because you want to claim a rights that are explicitly excluded by the statue.
The copyright act has not been overrun, it just as valid as it was before. The same technology that has allowed a previously inaccessable "Fair use" as significantly reduced the cost of production for your content which means the technology is balanced in the scope of copyright.
Like the VCR/VTR technology which reduced the cost of transporting the content (vs broadcasting lives across the air ways) and expose the previously inaccessible fair use "time-shifting". digital distribution does the same thing.
You are the one that is making the insane conclusion that you should exclusive protections IN THE SCOPE THAT IS EXPLICITLY EXCLUDED BY THE ACT.