This guy has his focus all wrong. Blaming DRM for the problem is bass ackwards. You don't see the music industry blaming DRM for their problems with digital music. They, and rightly so, blame Apple's domination for their quandary. The same can be said for DRM on ebooks. It is not DRM that is the problem. It is the domination of the entire market by a single vendor. Fix that problem and DRM no longer is an issue.

Physical books have Rights Management built right into them. It's called buying a single copy of a book. You don't demand unlimited copies of a physical book from a bookstore so why should you demand unlimited digital copies?

He is not right technically or practically:

Here is the definition of a legal right:

In modern English and European systems of jurisprudence and law, a right is the legal or moral entitlement to do or refrain from doing something or to obtain or refrain from obtaining an action, thing or recognition in civil society.

Under this legally accepted definition the description of fair use is in fact clearly a legal right as it entitles certain parties to do something.

I emailed Ross directly and below is his reply:

Thank you for writing. I find it interesting you're citing US Code and aren't familiar with "affirmative defense." It sounds like you need to speak with a copyright attorney, but you can start by reading our FAQ on fair use at http://www.copyrightalliance.org/copyrightsandyou/ fairusefaqs

I'm glad you wrote because your confusion makes my point for me. As you yourself point out, fair use is a limitation on an otherwise exclusive right. Congress, empowered by the Progress Clause of the US Constitution, in 1790 granted limited monopoly rights to creators. Nearly 200 years later, a fair use section was added to copyright law, that puts limits on those rights.

Imagine I own a farm and you like to fish downstream from my farm. I have property rights over my farm, but the government imposes limits on my exclusive rights. For example, I can't leach hazardous biochemical waste produced on my farm into the stream. That's good for you and the fish that you caught, but you have no "rights" related to my farm. I have limitations on my rights that benefit you and everyone else who wishes to use that stream.

The confusion you've shown here over the use of the word "right" shows exactly why it would be dangerous to use copyright warnings to explain fair use. Whole courses in law school are taught on this; it is not summed up by citing a portion of the US Code, nor is it summed up in my op-ed. It is far more complicated than that.

You might also want to read:

"What's 'Fair'? Why those Concerned About Copyright Fair Use Need to Say What They Mean," U. of Utah Professor Lee Hollaar, Institute for Policy Innovation, April 11, 2007 at http://www.ipi.org/ipi/IPIPublications.nsf/4e3087e 6ce3d8be6862567d8006fd628/33230e94b3b08de8862572c0 0053aa5e?OpenDocument

"Stepping on the Toes of Giants: What Not to Think About Copyright," Solveig Singleton, Progress & Freedom Foundation, May 2007 at http://pff.org/issues-pubs/ps/2007/ps3.6warmfuzzyt hinking.html

"Mountains Out of Molehills: How Believing the Worst Makes Technologists Ineffective, And What They Can Do About It," Lee Hollaar, Institute for Policy Innovation, April 26, 2007 at http://www.ipi.org/ipi/IPIPublications.nsf/f726f49 98ba46f86862567d80074727a/3b640346db49973d862572cd 00598873?OpenDocument

"Artists and Culture: Empowering the Former to Foster the Latter," Patrick Ross, Progress & Freedom Foundation, May 2006 at http://www.pff.org/issues-pubs/pops/pop13.6artistc ulture.pdf