[rights-requirements] FW: Rights Expression Language: Fair Use,First Sale

["Reddy, Hari" <Hari.Reddy@CONTENTGUARD.COM>]

Title: FW: Rights Expression Language: Fair Use, First Sale

Hello Everyone:
The enclosed is Patrick's response to Hal and myself. His post was bounced by the OASIS mail server for some reason...Patrick, I will check into this for you...

Patrick, thank you for your clarification...

Regards,
Hari

-----Original Message-----
From: Patrick Durusau [mailto:pdurusau@emory.edu]
Sent: Wednesday, August 07, 2002 6:05 AM
To: Reddy, Hari
Cc: Hal Lockhart; 'robin@isogen.com'
Subject: Rights Expression Language: Fair Use, First Sale

Hari,

A somewhat longer reply to Hal's question about including the ability to
express Fair Use and First Sale doctrines in a rights expression
language even though they are the "law of the land" and would have to be
in any digital rights management system.

First, realize that I approach this issue from the standpoint of someone
trained as a lawyer in a civil law jurisdiction (Louisiana) and see
rights as something that has to be defined in its full context in order
to be meaningful.

Let me see if I can illustrate that by example and then I will address
the issue of expressiveness of a digital rights language more directly.

In a civil law jurisdiction, a property owner (real property, i.e.,
land) has the right to use his property anyway he/she sees fit. It would
be possible to construct a law that says that, and in fact the Louisiana
Civil Code has a provision to that affect. (I stopped practicing over
ten years ago to pursue yet another graduate degree and so don't have a
copy of those materials right at hand but can supply the citation.) It
is also the case, however, that in some cases, members of the public
have what is called a right of passage over the land, which cannot be
blocked by the owner, despite the fairly absolute provision that they
can do anything they like with their property.

The question I was raising with regard to being able to express Fair Use
and First Sale doctrines in a digital rights language is quite similar.
It is a question of the expressive range of the rights language to fully
represent (whether it will be used or not, whether it will be
implemented or not, and related issues is not my point) the nuances of
rights as they exist in the legal system. After all, the language is
meant to:

> This common rights language will facilitate the interoperability of
> the systems that manage the creation, distribution and consumption of
> these digital works and services. 

Any lack of expressiveness that forces an implementation to look
elsewhere for information needed for determination of rights would
impede the interoperability that seems to be the point of the rights
expression language.

Take an example a little closer to home. Leaving aside all rights except
for those governed by contract, which is admittedly an inadequate subset
for judging the expressiveness of a digital rights language and further
limiting the rights to contract expiration date. (I realize this is an
absurd example but am trying to simplify the case to make it more
transparent.) If a digital rights language was fully capable of
describing a work to which it applied, the owner, the provider, etc.,
but was unable to express the term of the rights, I think we would all
agree that it was inadequate. Any system that tried to implement it
would have to look outside the digital rights language statement to get
additional information to make that statement useful. That need to look
outside the statement would indicate to me (you may have another opinion
about this) that the rights expression language is inadequate for its
intended purpose.

What I am attempting to focus on is the expressiveness of the rights
language, which should be capable of expressing all the things that
allow transparent "interoperability of the systems" at least with regard
to rights to "digital works and services." (There are other issues of
interoperability but they are not relevant to the discussion of a
digital rights language per se.)

A digital rights language must (in my opinion) have the capability to
fully express all rights that govern a digital work or service. Any
lesser expressiveness, reduces the ability of systems to interoperate by
forcing ad hoc reference to rights expressions outside the digital
rights language to accomplish their goal of  "creation, distribution and
consumption" of digital works and services. (I am assuming that it is
the current practice of ad hoc referencing that is part of the
interoperability problem that is meant to be addressed by the digital
rights language.)

BTW, my reply to Hal's message bounced from the rights-requirements
list. Can you forward that to the list?

Patrick
 

--
Patrick Durusau
Director of Research and Development
Society of Biblical Literature
pdurusau@emory.edu