Fair Use Bill Gains New Momentum

WASHINGTON — A long dormant bill amending the Digital Millennium Copyright Act (DMCA) to broaden consumer fair use rights gained new life Tuesday with the endorsement of House Energy and Commerce Chairman Joe Barton (R-Tex.).

Introduced more than a year-and-a-half ago, the Digital Media Consumer’s Rights Act (H.R. 107) amends the DMCA to allow consumers to circumvent copyright protection measures in digitally recorded materials if the intent of the circumvention is for traditional fair use rights.

The legislation also would also permit the making and distribution of hardware and software if the technology is capable of substantial non-infringing use.

The DMCA, which was enacted with the enthusiastic support of motion picture studios, the recording industry, and book publishers, currently prohibits both practices.

H.R. 107 was considered dead on arrival when Rep. Billy Tauzin chaired the House and Energy Committee, but the Louisiana Republican resigned from Congress earlier this year for health reasons. Barton has put the legislation, sponsored by Representative Rick Boucher (D-Va.) and John Doolittle (R-Calif.), back on the fast.

“I strongly endorse the Boucher-Doolittle bill. I don’t think it’s illegal to make a few copies for personal use,” Barton said at a Capitol Hill press conference. “It’s not open season for piracy [under the bill]. It maintains all prohibitions and penalties for that sort of thing.”

Barton said he “hoped” for a committee markup sometime in July and Boucher predicted passage is “well within reach of this Congress.” Although there is no similar legislation in the Senate, Boucher said an unnamed senator has promised to promote the legislation if it gains “momentum” in the House.

“I come at this issue not only as a member of Congress but as a consumer who is frustrated by overzealous copy protection that keeps me from using great products,” Doolittle said. “We have a right to make use of the technology we’ve bought.”

In its 1983 Betamax decision, the U.S. 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, limits those fair use rights with its prohibitions against circumventing copyright protections for any reason.

“The DMCA tilts the balance way over to one side,” Doolittle said. “It sailed through here [Congress] because they were upholding the rights of copyright owners. I believe Congress will restore the balance for consumers.”

Adding momentum to Barton’s endorsement is the support of a new lobbying group of high tech firms, universities and public interest organizations known as the Personal Technology Freedom Coalition. Its members include SBC , Qwest , Sun and Intel . In addition, electronics makers are backing the 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.

“On the whole, the DMCA is a very good Act, but it needs to be tweaked for more personal use for consumers,” Herschel Abbott, BellSouth’s corporate VP for governmental affairs, said.

Despite the new interest in the legislation, 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.

“I have the greatest respect for Mr. Valenti,” Doolittle said, referring to the Motion Picture Association of America’s influential Jack Valenti. “He has visited with each member of the committee for a half hour to an hour.”

Quipped Boucher, “Mr. Valenti is not alone in visiting congressional offices.”

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

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