Fair Use Bill Offers ‘Natural Extensions’ to Copyright Office Exemptions

“The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public’s right to fair use,” Boucher said. HR-1201 aims to let consumers use purchased media “for their own convenience in a way which does not infringe” the work. Boucher told us recently he won’t drop a long-running push on fair use in a year full of issues more pressing for him, but didn’t give a drop date for legislation (WID Feb 20 p2).

The bill would limit application of statutory damages for infringement to cases where the copyright owner has the burden to prove, and a court finds, that “no reasonable person could have believed” that his unauthorized use of a work was lawful. This would seem to make universal the exemptions in Title 17 Sec. 504(c)(2) for employees of educational nonprofits and public broadcasters acting in their official capacities. HR-1201 said it’s also codifying the Supreme Court Betamax ruling by banning liability based on hardware design, manufacturing and distribution, “if the device is capable of substantial, commercially significant noninfringing use.”

If made law, HR-1201 would double the approved circumvention exemptions in the Nov. Copyright Office ruling. The Office-granted exemptions cover educational use of compilations in university media and film studies departments., obsolete computer programs and videogames, malfunctioning dongles guarding programs and games, e-books with features for disabled readers, handsets locked to a network and CDs whose DRM may lead to vulnerabilities when played on PCs. The Boucher-Doolittle bill would add another 6: (1) Expand the educational-compilation exemption to any classroom and instructor. (2) Skipping through “commercial or personally objectionable content” in a work. (3) Interoperability among devices on a home or personal network, with an explicit ban on circumventing technology that prevents “mass, indiscriminate redistribution” as through a file-sharing network. (4) Accessing public domain works in a compilation consisting “primarily” of public domain works. (5) Accessing “a work of substantial public interest” to criticize, comment or conduct research on it. (6) Preserving or securing copies in a library or archives, or to replace damaged, stolen or missing copies.

But the bill “differs fundamentally” from previous bills, the 109th Congress’s HR-1201 and the 108th’s HR-107, the sponsors said. The new bill lacks provisions in those bills “which would have established a fair use defense to the act of circumvention,” due to content owners’ concerns, the duo said. Neither could be reached to explain that move, and the content industries didn’t comment on the provisions’ omission.

Provisions Like ‘Skanky’ Beer

Tech groups lauded the bill, and critics got creative in their denunciations. CEA Pres. Gary Shapiro said the bill would “reinforce the historical fair use protections” for consumers, educators and libraries, and “restore incentives to innovate” that led to the tape recorder, VCR, iPod, TiVo DVRs and Slingbox. The Home Recording Rights Coalition said the bill would embolden entrepreneurs, venture capitalists and tech companies to innovate without fear of a costly legal battle, as statutory damages wouldn’t be available so long as their lawyers green-lit the products as legal. “Any American using content for noninfringing purposes should not be considered a criminal or a pirate,” which the bill codifies, Digital Freedom Campaign’s Don Goldberg said.

RIAA said the bill would “legalize hacking” and reverse Grokster. Congress recognized that it’s “impossible to determine and enforce” whether “hacking” is for noninfringing purposes or to steal, which is why anticircumvention authority is vested in an agency and triennial review process, the group said. Challenging CEA, RIAA traced iPod’s lineage to the DMCA, and said online games, on-demand movies and “many other services are coming to market” due to the DMCA.

Perhaps because of its less-troubled history with file- sharing, MPAA was more diplomatic than its music counterpart. The “well intentioned” HR-1201 “ignores reality,” the trade group said -- that “almost every week” new platforms for watching movies and TV programs are being rolled out, “from cell phones to digital downloads.” Fair use is “exercised more today than at any time in our history,” and the “safety valve” in the DMCA and Copyright Office anticircumvention rulemakings is working fine, MPAA said.

Progress & Freedom Foundation’s Patrick Ross compared the bill to cheap booze. “Boucher and Doolittle would have us believe that this new version is an improvement on their past efforts -- ‘Tastes great, less filling.’ It’s still plenty filling, and the beer still tastes skanky,” he told us. The congressional duo should work through the Copyright Office review process and trust that consumers can “apply pressure in the market to get what they'd like to purchase,” independent of Congress, he added. If the DMCA is to be reviewed, Congress should find explicitly that the law’s original language limiting infringement liability was meant only for ISPs, not YouTube and other websites, Ross said. Courts’ application of DMCA protection to such sites has turned copyright to an “opt-out” system, “which is intolerable,” he said.