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Boucher Introduces Fair Use Rights Bill

Digital home recording rights became the first technology-related legislation introduced in the 108th Congress Tuesday afternoon with the filing of a bill intended to protect the fair use rights of consumers purchasing copyrighted material.

Sponsored by Representatives Rick Boucher (D.-Va.) and John Doolittle (R.-Calif.), the bill would amend two key provisions of the Digital Millennium Copyright Act (DMCA) which currently prohibit the circumvention of a technical protection measure guarding access to a copyrighted work even if the purpose of the circumvention is to exercise traditional consumer fair use rights.

Entitled the Digital Media Consumers' Rights Act (H.R. 107), the legislation is identical to the bill introduced by Boucher last November (H.R. 5544).

In its 1983 Betamax decision, the Supreme Court established the rights of consumers to make copies of legally purchased copyrighted material for the purpose of "fair use," such as making personal backup copies or multiple copies for different media devices. The 1998 DMCA, however, which was enacted with the enthusiastic support of motion picture studios, the recording industry, and book publishers, makes it illegal to make copies of any digitally-recorded material for any purpose.

The DMCA also prohibits the manufacture, distribution or sale of technology which enables circumvention of protection measures.

Boucher's bill would limit the scope of the prohibition to circumvention for the purpose of copyright infringement. Circumvention for the purpose of exercising fair use rights would be permitted under the legislation. The legislation would also permit the making and distribution of hardware and software if the technology is capable of substantial non-infringing use.

"We need to have a true balance in the law that respects the rights of copyright owners but also respects the rights of users," Boucher told Internetnews. "The technology community has realized that a vibrant fair use right law is essential."

Boucher added, "The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the Fair Use rights of the users of copyrighted material. The re-introduced legislation will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work."

Boucher said the tech community now considers fair use rights to be "one of its highest priorities" and pointed out that supporters of his legislation include Intel, Verizon, Philips Electronics North America Corp., Sun Microsystems, Gateway, the Consumer Electronics Association, Computer and Communications Industry Association, the Association for Computing Machinery, the Computer Research Association and a variety of trade associations representing technology companies.

Electronics makers are backing Boucher's bill because they claim the DMCA's prohibition against devices that allow for encryption circumvention is too subjective to give manufacturers confidence to introduce new products.

"Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market," Boucher said.

The bill is likely to encounter fierce opposition from the well-funded music and movie industries, which have already spent millions to shut down file swapping sites and view the DMCA as essential to avoiding another Napster-like run on copyrighted material.

A spokesperson for the Recording Industry Association of America (RIAA)said the organization had no comment on the legislation while a telephone inquiry by Internetnews to the Motion Picture Association of America (MPAA)was not initially returned.

The legislation would also direct the Federal Trade Commission (FTC) to promulgate a regulation requiring that "copy-protected CDs" be properly labeled.

"The few copy-protected CDs which have been introduced into the U.S. market to date are inadequately labeled and create broad consumer confusion," Boucher said.

The bill now goes to the House Energy and Commerce Committee for hearings.

"The next step is to build a stronger base in the House and line up support in the Senate," Boucher said. "I will make a prediction about this legislation: we're going to pass the bill. I would point out that it took six years to pass the DMCA."