The Luddite lamented, "the Millennium is upon us and still they depend upon the machines. We have failed."
"Yes, but it is a Digital Millennium," said the Luddite's Lawyer. "There is a way, but first you must write!"
"I don't understand," said the Luddite. "How can writing stop the machines?"
"First you write," said the lawyer with a knowing smile. "Then I write writs."
Still confused, but ever trustful, the Luddite wrote. He wrote furiously. He wrote from his heart and soul. He wrote with his all, trying to express in his stories how the machines have ruined us. Alas, he was no writer.
The Luddite bowed his head in dismay. Despite his passions, the words were vapid, dull and derivative. He knew this at once. Every theme, every motif, every character came from the far more enlightened works of those who have come before him. Every idea embodied in his words were that of another.
"That does not matter," said the Lawyer. "All of that may be true, but these works are original, at least in the technical sense of originating from you. Since you have put quill to paper yourself, we have done what we set out to do.
A work of original authorship was fixed in tangible media. A copyright was born.
First, the Luddite's Lawyer took the stories, and made from them movies. He took the movies, and made from them DVDs, careful to effectively encrypt the content.
And then, the Luddite's lawyer wrote writs. He sued machines. He sued the makers of the machines. He sued and served them all.
"Cease and desist!" he cried. "The machines must be enjoined, for they circumvent the encryption of the Luddite's art! They permit the unauthorized to view the stories."
I accuse these DVD player machines and the companies that make them. It cannot be, that the works so carefully encrypted may be actually viewed by persons without the consent of a Luddite.
Counsel for the machines were indignant. "The Luddite invented nothing, designed nothing, conceived nothing," they said. "And yet the Luddite seeks to enjoin the manufacture and sale of our machines as though he had a patent on the technology itself. He is not asking us to stop copying, for we do not copy. He is asking us to stop using machines. Our machines, they are used legitimately by millions to view the works of others, and those are substantial and noninfringing uses. And, to be frank, his works are wholly unworthy of protection sufficient to stop the flow of progress."
It did not matter, the Judge noted. The work may be vapid, but it was original enough. The amount of infringement might be nominal, but one copy was enough. The elements of infringement were made out, and that, at the end of the day, was that. Substantial noninfringing use might have helped the defendants last year, before the millenium, but the defendants here do not stand accused of infringement, or even of contributing to an infringement.
"You are accused of trafficking in technology whose primary purpose is to circumvent a technological measure that effectively controls access to a work protected under this title." How do you answer that?
"We are licensed to do so," the machines' counsel replied. "A consortium of copyright owners have approved our circumvention of their works, for which we paid dearly enough in promises and limitations on our machines, which might have been better but for those limitations."
"The Luddite did not so license them, your honor," the Luddite's lawyer retorted. No act of a media consortium shall preempt the will of the Congress. 'No person' means no person! While they may have obtained the permission of a few, perhaps even many owners of blessed copyrighted works, the works of the Luddite are no less blessed by the Constitution or the Act. The Luddite has used technology that effectively protects his right as a copyright owner. If the machines want safety from circumvention of his work and those of others not in the consortium, they must obtain, of course, the license from all who own a copyright, not just that of the few."
Puzzled and disoriented, the machines' counsel thought for a moment. "But the consortium first used the means by which the Luddite encrypted. The Luddite cannot use that technology on one hand, and then claim protection under the law the consortium passed to protect that work. The Luddite doesn't want his work seen, he wants the machines stopped. He will never give his consent to us. This is giving to him, for his vapid and unoriginal work, patent-like protections over the machine for so long as the term of his copyright shall last. And what is to stop him from coming up with new works even then? Indeed, your honor, without the machines, we cannot view the work to determine whether or not it is original for our defense, a clear fair use. The rights the Luddite here claims are a harsh and blatant regulation of technology, uncabined by any principle of balancing of interests."
The Judge read the statute, and nodded to the Luddite's Lawyer. The lawyer made his case:
Your honor. This statute gives remedy against circumvention, not only to a consortium, but to "[a]ny person injured."
Perhaps before the Luddite wrote, all who owned copyrights might have consented, but that is not the case today.
That right granted by the Congress extends an award of damages and an injunction. The Luddite is a person, and a copyright owner who effectively encrypted. The machines must stop forthwith.
As to balance, the Congress is the guardian and architect of that balance. And Congress has spoken in the Digital Millennium. This Court is not at liberty to say otherwise.
Yes, it is the Luddite's intent to stop these machines, and the machines can make no offer or consideration that would obtain his consent. But it is clear that the Congress passed this law fully cognizant of the complaints of technologists, quite similar to the defendants here, that this law would stunt and diminish the availability of important technologies disapproved of by a copyright owner.
Yes, it is true that compliance with this law might stunt a fair use or two. But it is likewise clear that the Congress passed this law fully cognizant of the complaints of many, quite similar to the defendants here, that this law would not permit certain fair uses. In three years, they may apply to the Register of Copyrights, and perhaps earn an exemption. But until then, they must cease and desist.
Yes, it is true that the Luddite did not himself invent the technology circumvented. But the Congress passed this law fully cognizant of the complaints that "effective protection," need not be patentable, and need not even be owned or invented by the person asserting the claim. The technology in this case is such an example, for DVD in its basic form, while an effective protection, was not patentable or invented by the consortium of media who have traditionally asserted it. The Congress meant to protect works of authorship -- for they are truly important.
And yes, it is true that the right to enjoin circumvention will mean that these allegedly legitimate uses of these machines must be stopped. But that too was the will of the Congress, who did not provide an exemption for technologies that permit lawful and fair use viewing, but also circumvention. The Luddite's works must be protected from these foul machines, and they must be stopped during the Digital Millennium.
And with that, the Judge banged the gavel, and the edict issued. "Unless you change the machines to avoid circumventing this author's works, you must stop selling them during the term of his copyright, and that of any other who might complain."
The Luddite's lawyer beamed, but the Luddite was concerned. "How long will I be able to stop these machines?" "For this work, until seventy years after you have died. However, for so long as you and those who want to stop the machines continue to create new works and assert those rights, the technology regulation will continue."
And with that, the Luddite and his friends began to write anew.