Fair Use Amendment Introduced to the DMCA

There's been a big chill in the United States when it comes to technological progress that skirts the boundaries of copyright law. P2P and file-sharing developers know this all too well, as such development, with the exception of BitTorrent, has come to a virtual standstill. Thanks to the DMCA (Digital Millennium Copyright Act), the right of consumers to make backups of rightfully owned entertainment has become stifled.

For example, if a consumer wishes to make a backup copy of a legally purchased DVD, such a venture would not be possible (well, legally) because the DMCA prohibits individuals from circumventing copyright protection devices. 321 Studios, the company that created DVD X Copy, learned this lesson the hard way, and was sued into oblivion. Their software utilized a decrypting engine called DeCSS to make perfect backup copies, which is a classic example of breaching the DMCA.

More recently, there's been a steaming fair rights debate with the arrival of high definition video. Currently, there's virtually no way to make backup copies of one's high definition video collection, unless a - gasp - VCR is used. This lack of fair use support was one of the motivating factors behind the circumvention of AACS, the device used to "protect" high definition movies. In reaction to this stringent copy protection, Muslix64, the individual who pioneered the defeat of high definition protection, told Slyck.com, "I'm just an upset customer. My efforts can be called "fair use enforcement!"

There are also a few pioneers in the United States House of Representatives attempting to amend the DMCA in favor of the consumer. The Bill, named Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (H.R. 1201), or Fair Use Act for short, was introduced today by U.S. Representatives Rick Boucher (D-VA) and John Doolittle (R-CA.)

"The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balance between the rights of copyright owners and the rights of the users of copyrighted material. 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. "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," Boucher explained.

The Bill details several rights it hopes to give back to consumers, educators, and software/hardware designers. In an effort to pacify concerns of the entertainment industry (and to give the Bill a snowball's chance), the Bill does not contain "fair use defense to the act of circumvention." In other words, it doesn't establish a blanket safe harbor provision to all acts of circumvention.

Instead, the fair use provisions are narrow. The Bill seeks to amend the DMCA's circumvention provision by adding the following paragraph:"(F) The prohibition contained in subparagraph (A) shall not apply to a person by reason of that person’s engaging in a non-infringing use of any of the 6 classes of copyrighted works set forth in the determination of the 2 Librarian of Congress in Docket No. RM 2005-11, as published as a final rule by the Copyright Office, Library of 4 Congress, effective November 27, 2006..."If you read paragraph "A" of section 12-01 of the DMCA, it's fairly clear that no circumvention means no circumvention. "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

This Bill would effectively negate the burden of paragraph "A" if the circumvention is within the scope of the six classes of copyrighted works referenced above. There is no mention of DVD or optical disc circumvention and the exemptions are very narrow - and antiquated - in scope. The only circumvention provisions related to DVDs allow for “…consumers to circumvent a lock on a DVD or other audiovisual work in order to skip past commercials at the beginning of it or to bypass personally objectionable content…”, but not backup the work.

The reasons for the such narrow provisions stem from previous attempts by Representatives Boucher and Doolittle to introduce much more aggressive fair use amendments. However because these previous attempts had a much wider circumvention scope, they were swiftly curtailed by the entertainment industry.

More relevantly, the Bill will also empower librarians to 'ensure that they can circumvent a digital lock to preserve or secure a copy of a work or replace a copy that is damaged, deteriorating, lost, or stolen."

Perhaps most welcome to software and hardware designers is the provision to codify the Sony Corp. v. Universal City Studios, Inc. ruling, otherwise known as the Betamax decision. “Subsection (b) would immunize these and other hardware companies, as well as entrepreneurs, from copyright infringement liability based on the design, manufacture or distribution of hardware devices (or components of those devices ) that are capable of a substantial, commercially significant non-infringing use.”

Additionally, the Bill seeks to limit "availability of statutory damages against individuals and firms who may be found to have engaged in contributory infringement, inducement of infringement, vicarious liability or other indirect infringement." In other words, the next time someone considers the creation of a new P2P network, they won’t have to worry so much about a potential $30 million judgment.

The Bill is a positive step forward, yet even if it were passed, it would not help those looking to make backup copies of their DVD collection. Like the DRM issue currently facing the authorized online music stores, this attempt is a small step forward in the effort to unlock the grip of the entertainment industry.