03.03.2007 — The so-called Fair Use Act of 2007, introduced by Rep. Rick Boucher (D-Virginia) and Rep. John Doolittle (R-California) on Feb. 27, proposes some exceptions to the innovation-stifling, fair-use-crippling Digital Millennium Copyright Act (DMCA) of 1998.

The new proposal would allow consumers to skip commercials and objectionable material, and permit librarians to bypass some digital rights management (DRM) technology to preserve copyrighted collections. Woo hoo.

Lucky me, journalists would receive some leeway under the Fair Use Act for their editorial pursuits, but I doubt this would entail my being able to copy DVDs from Blockbuster to research George Clooney's body (of work).

In fact, consumers could not copy DVDs at all, even if the action were strictly for backup purposes. Thus, the many people who rip protected DVDs to hard drives still would be breaking the law.

It's possible, however, that the manufacturers who make the media servers that allow (encourage) consumers to rip their DVDs, could get some relief through the Fair Use Act, which seeks to codify the Sony-Betamax case of yore. That decision held that manufacturers would not be liable for the law-breaking acts of their customers, so long as their product had significant non-infringing uses. Indeed, Sony's Betamax players had such uses.

The Sony-Betamax decision was undermined in 2005 when the Supreme Court ruled that Grokster, StreamCast and their ilk could not market products created ostensibly to flout the law.

The Fair Use Act 0f 2007 provides that, so long as a product or service has a "substantial, commercially significant noninfringing use," its creators would not be liable for the abuses of its users.

As for some of the other DRM issues addressed in the Act, consumers still would be prohibited from stripping encryption from digital music to listen to tunes on any device they choose, per the DMCA.

The sort-of good news, though, is that the Act would loosen restrictions on sharing content around the home or on a "personal network," so long as the circumvention does not interfere with DRM restrictions that prevent the uploading of protected content to the Internet. Sorry, no loopholes here for bypassing the proposed broadcast flag.

It's a start. The two representatives have failed in earlier attempts to pass fair-use-type doctrines.

From the press release on the introduction of the Fair Use Act of 2007

U.S. Representatives Rick Boucher (D-VA) and John Doolittle (R-CA), today introduced the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act) to protect the fair use rights of users of copyrighted material and thereby enable consumers of digital media to use it in ways that enhance their personal convenience. The legislation contains several improvements to the Digital Media Consumer's Rights Act, similar legislation which the lawmakers introduced in the 108th and 109th Congresses. Congresswoman Zoe Lofgren (D-CA) is an original cosponsor of the legislation.

Because the fair use rights of consumers of digital media are severely threatened today, Boucher and Doolittle propose amending a 1998 law, the Digital Millennium Copyright Act, which was enacted at the behest of motion picture studios, the recording industry, and book publishers.

"The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balanced 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.

"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 added.

"America can and must be a world leader in technological innovation," said Doolittle. "This objective is hindered by the provisions in the DMCA that discourage the free flow of ideas and information. The FAIR USE Act removes those disincentives, and I look forward to seeing the benefits that will ensue."

The FAIR USE Act differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively, by Representatives Boucher and Doolittle. In an effort to address the concerns expressed by content owners, the FAIR USE Act does not contain provisions which would have established a fair use defense to the act of circumvention.

The legislation instead contains specific exemptions to section 1201 of the Digital Millennium Copyright Act which do not pose a comparable potential threat to their business models. For example, the proposed legislation would codify the decision by the Register of Copyrights, as affirmed in a determination made by the Librarian of Congress under section 1201(a)(1) of the DMCA, to allow consumers to "circumvent" digital locks in six discrete areas. The bill also contains narrowly crafted additional exemptions that are a natural extension of these exemptions.

Other new elements of bill include limiting the 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. A more narrowly crafted provision codifying the Supreme Court's Betamax decision to eliminate any uncertainty about a potential negative impact on the Supreme Court's holding in the Grokster case is also contained in the legislation.

Finally, given the central role that libraries and archives play in our society in ensuring free speech and continuing access to creative works, the bill includes a provision 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.

"I look forward to working with my colleagues and all interested parties in an effort to properly balance the rights of content owners, consumers and other constructive users of content. I will welcome their suggestions about how the measure might be further improved as it moves forward in the legislative process," Boucher concluded.

"As a consumer, I am excited about the possibilities that the FAIR USE Act brings," stated Doolittle.

Supporters of the FAIR USE Act include the Consumer Electronics Association, the American Library Association, the American Association of Law Libraries, the Association of Research Libraries, the Special Libraries Association, the Home Recording Rights Coalition, the Computer & Communications Industry Association, and other organizations representing the public interest and the consumers of digital media.