do not apply to the DMCA’s circumvention provisions. Your backup copy for your own private use is not now considered among these purposes.
Yep - as you noted that's another laywer's opinion, which is:
- Not backed up by any body of case law (Fair Use is, as are DMCA violations
with intent to distribute. Case law around DMCA violations with no distribution does not exist, for reasons I've previously stated).
-
Assumes that if the DMCA and the (older, more established, still used) Fair Use Doctrine openly conflict, the DMCA "wins" (this is
not how law or case law works)
- Ignores the previous point - that the DMCA
ignores existing law and makes
no provision for reconciling with the previous Fair Use case law it contradicts, and that solving this problem would necessarily force courts to either throw out the Fair Use Doctrine entirely, or explicitly reword and weaken the DMCA itself - neither of which has happened. It's a legally noxious detante.
Really? I'd argue that the reason nobody has been charged for only making copies is...how would they ever get caught? Distributors are MUCH lower hanging fruit.
Correct - we're making the same point here - the DMCA is
overbroad and practically unenforcable where it conflicts with the Fair Use Doctrine, so you're correct that legally enforcing this is is something that DMCA proponents have avoided, because the difficulty of doing so and engaging with this in court would force the court to come up with case law that would explicitly reconcile this contradiction between pre-existing law and the DMCA - and there's good odds this "reconciliation" would weaken the "threat" of the DMCA considerably.
tl;dr - there are two laws that explicitly contradict each other, and all case law thus far studiously avoids resolving that contradiction. If there are contradictory laws on the books (itself a sign that there's a problem), then my options are to do what the big copyright DMCA boosters do - wait for case law to reconcile the difference, and in the meantime selectively pick which of the mutually exclusive laws I get to follow in specific cases, such as when making personal backups.
Fair Use caselaw says I have a right to make personal copies. DMCA caselaw says I don't, but doesn't specify how it can make this claim without throwing out Fair Use caselaw (which it didn't - fair use caselaw is still being used to deliver legal judgements, post-DMCA) , and DMCA proponents have studiously avoided testing this contradiction in court, because they know it's a problem, and they can still go after distributors without testing this contradiction. They were awarded overbroad legislation that contradicted existing caselaw by technically-illiterate judges in the early 2000s, and they can use it to go after distributors, so why rock the boat?
