DRMs and Fair Dealing

Yesterday's posting was on the French (we hate your fiendish leetle snippets, Google!) so it is only fair and balanced (tm) that today's be about their friends across the channel, the les rosbifs. In a speech this week to the All-Party Parliamentary Internet Group, the British Library's Chief Executive Lynne Bradley, complained that Digital Rights Management (DRM) restrictions are interferring with libraries' ability to avail themselves of the fair dealing provisions of the UK Copyright Act. Those provisions, it may be noted, are different from our fair use doctrine. The great 18th century English common law judges, in the early days of swaggering law-making, developed fair use, which we them adopted and ran with, beginning with Justice Story's landmark (he was in Massachusetts where they have landmarks; we in New York City have none) opinion in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841). Later English judges thought Story did such a smashing job with their own doctrine that they cited his formulation of it, see Scott v. Stanford, L.R. Eq. 718, 722 (1867).

Parliament stepped in though, and altered the landscape with a statutory "fair dealing" provision, and subsequent particular defenses. (Here is a link to an article comparing the Google Book Search project under U.S. and U.K. law). Chief Brindley's complaint is that contracts containing DRM obligations are stripping libraries and their users of fair dealing. That is an issue faced here, of course, by cases line ProCD and Bowers. It is, as Yogi Berra said, in his best French, deja vu all over again.