Fair Use Faltering


Rep. Rick Boucher has Hollywood all flustered. Again. Don’t you just hate
that?


The Virginia Democrat enjoys wide respect, if not support, from both sides
of the aisle for his grasp of technology issues. You may not agree with
Boucher, but you almost always come away agreeing he has a point.


The latest case in point: fair use rights.


Boucher supports legislation that would allow consumers to “circumvent a
technological measure in order to obtain access [to works] for purposes of
making non-infringing use of the work.”


H.R. 1201, the Digital Media Consumers’ Rights Act of 2005,
further adds, “Except in cases of direct infringement, it shall not be a
violation of the Copyright Act to manufacture or distribute a hardware or
software product capable of substantial non-infringing uses.”


Boucher’s bill would amend two key provisions of the Digital Millennium Copyright Act (DMCA), which currently prohibits 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.


“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 has
repeatedly preached.


Hollywood so dislikes this idea that earlier this week a Universal Music
Group attorney told a House panel that Boucher’s bill “would undermine the
legitimate marketplace by granting a ‘hacking’ right to consumers.”


Michael Ostroff went on to claim, “This bill is unnecessary and dangerous.”


Congress passed the DMCA in 1998 in response to Hollywood’s concerns over
piracy. Content owners stressed that with digital technology a copy of a
copy of a copy has the same clarity and perfection as the original work.


Copyright owners — even before the explosion of peer-to-peer (P2P) music
services — said that with a click of the mouse, thousands of those perfect
copies could be sent around the world.


Congress’s solution was to ban it all.


Under the DMCA there is no requirement that the circumvention be for the
purpose of infringing the copyrights. Instead, any act of circumvention
without the consent of the copyright owner is a criminal act.


“If you want to copy a portion of a chapter of a book to quote in a book
report, you cannot steal the book in order to do so,” Ostroff said. “Yet
that is exactly what H.R. 1201 would do.”


The interesting point about Ostroff’s diatribe against Boucher’s bill is
that the hearing had doing to the legislation.


The hearing was all about digital radio.


Having ripped the very concept of fair use embraced under Boucher’s bill,
Ostroff launched another attack on satellite radio service XM’s development
of handheld devices that give XM subscribers the ability to receive live
broadcasts and time shift it for later listening.


The handhelds also allow subscribers to play MP3 music collections.


Hollywood: Not fair!


“Congress gave the satellite services a compulsory license to perform our
music, so that their subscribers could listen to it,” Ostroff said, adding
that the music industry help launch satellite radio service by agreeing — through the compulsory license — to below market rates.


“Now XM wants to stretch and reinterpret the government imposed license into
a service that enables their subscribers to make permanent copies of our
music,” Ostroff said.


XM: Get a life.


“As an industry, satellite radio is the single largest contributor of sound
recording performance royalties to artists and record labels,” XM CEO Gary
Parsons said.

“In fact, XM and Sirius pay more in such performance royalties
than all other digital broadcasters and webcasters combined.”


Parsons told the lawmakers the XM handhelds do not allow any of the recorded
content to be moved off the device in digital form, including uploading to
the Internet.


“Content saved to the device from XM stays on the device and cannot be
copied or removed,” Parsons said. “The only output on these devices goes to
your headphones in analog form. The new products … promote personal listening
enjoyment, not Internet piracy.”


Ostroff insisted that allowing XM to distribute music while paying only
performance fees is unfair to iTunes, Napster and other distribution
services.


“The growth of digital distribution in its many forms — via cell phones,
Internet, cable and now via broadcast signals — depends on a legitimate
marketplace,” he said. “A legitimate marketplace, in turn, depends upon the
ability to protect content effectively.”


From Hollywood’s point of view, that ability to protect content, it appears,
seems to preclude any consumer fair-use rights.


Too bad more people aren’t listening to Rick Boucher.

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