‘Fair Use’ Becomes Fair Game in House

WASHINGTON – “Fair use” provisions under copyright law have become fair game in Congress.

This time, during a hearing Wednesday, the target was the Digital Millennium Copyright Act (DMCA), which prohibits the circumvention of copyright protection measures even for lawful purposes.

“I believe the affects of the DMCA to lock out consumers from the proper and fair use of material is a perverse result of the law,” Rep. Cliff Stearns (R-Fla.) said in a House hearing focusing on fair use.

Although no specific legislation was on the table, the hearing was a warm-up session for H.R. 1201, which is called the Digital Media Consumers’ Rights Act of 2005.

The bill by Rep. Rick Boucher (D.-Va.) proposes to allow consumers to circumvent anti-piracy encryption for purposes of fair use.

House Energy and Commerce Chairman Joe Barton (R-Tex.) added, “Current law provides that I am liable for anything I do that amounts to infringement, but current law also prevents me from making legal use of content that is technologically ‘locked,’ even if I have a key. That doesn’t make sense to me.”

Fellow Republican Mary Bono (R.-Calif.), though, disagreed with both Stearns and Barton, arguing that the entertainment industry can not fully make the transition to a digital world “if the federal government decides their intellectual property is free for the taking under the ‘fair use’ doctrine.”

Under the DMCA, consumers face potential criminal and civil penalties for making even as much as a backup copy of copyrighted digital material. The 1998 law also extends its prohibitions to those who sell or trade in technology designed to break digital rights management (DRM) encryption.

In theory, even consumers sent scrambling this week to remove Sony’s buggy DRM copyright protection scheme are in violation of the law.

Rep. Marsha Blackburn (R.-Tenn.), who represents the country music industry’s hometown of Nashville, flatly stated she would be opposed to any change in the DMCA that “codifies something that condones theft.”

Bono and Blackburn’s concerns echo the comments last year of Jack Valenti, the former chief of the Motion Picture Association of America, who told lawmakers that once “copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original.”

Witnesses were equally divided over the DMCA.

“Fair use is in great peril. For the past decade, the fair use rights of consumers…have been chipped away little by little,” Gigi Sohn, president of the digital rights advocacy group Public Knowledge, said. “While technology has advanced and consumers have come to expect that they can enjoy the content they buy when and where they want, we are at the same time seeing a dedicated and forceful campaign to restrict what consumers can do with that content.”

According to Sohn, among the practices prohibited by the DMCA include ripping songs from copy-protected CDs to personal computers and MP3 players and making a digital copy of a DVD for playback on an iPod.

In addition, she said, the DMCA bars making backup copies of copy-protected CDs and DVDs.

“The content industries have promoted a ‘permissions culture’ in which even the most incidental use of a copyrighted work requires a high licensing fee or leads to a lawsuit,” Sohn said.

Paul Aiken of the Authors Guild countered, “Fair use…has been transmuted by some into free use or good use or any other use that some interest group, industry or corporation wants to make of copyrighted works without paying for them.”

The Entertainment Software Association (ESA), the trade for association for game developers and marketers, also weighed in heavily in support of the DMCA.

“Unlike some of the other content industries…the active sales cycle of a new game release is often only a few months long,” Frederic Hirsch, the ESA’sa SVP of intellectual property, said. “This the reason that our industry has invested heavily in technological protection measures, as these help to limit the damage that game publishers suffer from pirate versions of their games.”

Stearns warned all the parties to the dispute that if they don’t want a legislatively-mandated solution to the problem, they need to work out their differences.

“I support fair and balanced intellectual property laws but I also understand that the rest of the world sometimes doesn’t play by our rules,” he said. “I believe there is a balance to be achieved here but I think technology is the best way to manage that balance.”

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