Fair Use Bill Would Unlock DMCA

Two veteran fair-use advocates introduced legislation Tuesday to amend provisions in the Digital Millennium Copyright Act (DMCA) that severely limits the ability to make copies of legally purchased content.

The Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act) introduced by Reps. Rick Boucher (D-Va.) and John Doolittle (R-Calif.) would allow consumers to circumvent digital rights management (DRM) technology to transmit works over a home network.

The bill would also allow consumers to circumvent DRM measures to skip past commercials or objectionable material. Making a copy of the DVD, however, would still be illegal.

In addition, the FAIR USE Act would permit reporters, teachers, researchers and others to bypass digital locks blocking access to works of public interest if the circumvention is for the sole purposes of criticism, comment, news reporting, scholarship or research.

Under the DMCA, it is illegal to circumvent any copyright-protection measures in digitally recorded materials. The DMCA also prohibits the manufacture, distribution or sale of technology that enables circumvention of protection measures.

“DMCA dramatically tilted the copyright balance toward complete copyright protection at the expense of the public’s right to fair use,” Boucher said in a statement. “The FAIR USE Act 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.”

The bill would also limit the availability of statutory damages for manufacturers of electronics and software that allow for the circumvention of DRM locks if the technology also has non-infringing uses. This is affirmation of the landmark 1983 Supreme Court Betamax decision establishing the rights of consumers to make copies of legally purchased copyrighted material for the purpose of “fair use.”

Since that 1983 decision, fair use has traditionally been interpreted to include backup copies and multiple copies for different media devices. The 1998 DMCA, however, restricts most of those rights when it comes to digitally recorded material.

“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 Recording Industry Association of America (RIAA), which, along with the Motion Picture Association of America, strongly supports the DMCA, immediately issued a statement condemning the legislation.

“[The bill] would repeal the DMCA and legalize hacking. It would reverse the Supreme Court’s decision in Grokster and allow electronics companies to induce others to break the law for their own profit,” the RIAA said.

In a 2005 decision, the Supreme Court ruled the peer-to-peer music file sharing service Grokster created an illegal business model and held the company liable for inducing the illegal copyright infringements of its users. Significantly, the court did not overturn its Sony Betamax decision, which established the principle of technology neutrality. Instead, the justices focused on the business models and behavior of the P2P developers.

“Proponents of [the bill] claim it legalizes hacking only for ‘non-infringing’ uses,” the RIAA said. “But as Congress recognized when it enacted the DMCA, the difference between hacking done for non-infringing purposes and hacking done to steal is impossible to determine and enforce.”

In an analysis of their legislation, Boucher and Doolittle contend in age of digital works, the threat of statutory infringement damages for equipment and software makers is so prohibitive that many fear bringing new products to market.

“Under the bill, statutory damages would remain available for conduct that no reasonable person could have believed to be lawful,” the analysis states. “With this condition in the law [companies] would feel more confident in going to court, if necessary, for a fair hearing on the merits, and aggrieved parties could find relief from scofflaws.”

Boucher and Doolittle have long stumped for changes in the DMCA. In both the 108th and 109th Congresses they introduced legislation to liberalize the DMCA, including bills that would have allowed consumers and companies to invoke a simple fair-use defense for acts of circumvention prohibited by the DMCA. The bills never came to the House floor for a vote.

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