Boucher Calls Copyright Office ‘Misguided’

U.S. Rep. Rick Boucher (D.-Va.), a longtime champion of fair use rights, said Thursday the Copyright Office’s ruling earlier this week denying consumers the right to make “fair use” copies of digitally recorded material except in very narrowly defined cases, was a “misguided decision.”

On Tuesday, the Copyright Office announced four classes of work that will be exempt from the Digital Millennium Copyright Act’s (DMCA) specific prohibition against circumvention of technological measures that control access to copyrighted works.

The exemptions were granted for (1.) decoding lists of Web pages or directories blocked by Internet filtering software, also known as censorware; (2.) circumventing obsolete digital rights management devices called “dongles” that prevent access due to malfunction or damage; (3.) accessing computer programs and video games distributed in obsolete formats; and (4.) accessing e-books for which the publisher has disabled the read-aloud function or the ability to use screen readers to render the text into a specialized format, such as Braille for access by the blind.

As a result of the ruling, Boucher said, “Consumers will continue to be subject to the whims of copyright owners seeking to deny them the right to use lawfully purchased digital works for a variety of fair use purposes. . For example, the Copyright Office ignored this opportunity to exempt from the DMCA the ability to bypass copy protections so that consumers can play or display media on a variety of home devices.”

In January, Boucher made digital home recording rights the first technology-related legislation introduced in the 108th Congress. The bill has yet to have a hearing.

“Now that it is clear that the Copyright Office is not going to interpret the DMCA in ways that will permit ordinary fair use activities, the need for the enactment of H.R. 107 is more apparent than ever,” Boucher said.

Boucher added, “Consumers will not be permitted to make back-up copies of DVDs; they will not be able to circumvent access control mechanisms even when they have malfunctioned, are damaged, or have become obsolete, and they will not be able to engage in certain types of encryption research and security testing.”

Boucher’s bill would amend two key provisions of the 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.

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.

Under Boucher’s legislation, circumvention for the purpose of exercising fair use rights would be permitted. The bill would also permit the making and distribution of hardware and software if the technology is capable of substantial non-infringing use.

“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,” Boucher told in a January interview. “This 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

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