May 14, 2003
The Substantive Due Process Jamboree
That’s what I’m in the middle of right now, because my ConLaw final is tomorrow. So, I’m a little busy. Two quick thoughts for the day:
1. I’d love to know if anyone can corroborate this analysis. I’m not sure if he’s correct about whether it’s webcasting (I’m not sure if the potential size of audience actually matters in webcasting) and whether it’s an interactive/non-interactive service (I don’t know enough about iTunes). What’s more, even if this isn’t webcasting, then that doesn’t mean the iTunes users are in the clear. It might mean that, rather than paying statutory licenses, they’d have to negotiate directly with the RIAA.
2. As Frank suggests, read this and then this. The former piece explains how DRM is not only problematic in what it’s generally used to prohibit, but in how inflexibly it prohibits. Going back to what I was saying yesterday, this brings up an important point about fair use. You can’t codify all fair uses, because fair use is not rigidly definable. It’s an evolving concept, generated by the flexibility Weinberger’s discussing. Certainly, it might be worth defining some fair uses to help avoid recurring legal quarrels. But, if we try to codify too many, we risk treating those fair uses as an upper limit.
Filed by Derek Slater at 5:50 pm under General news
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