shouting loudly

Representatives Rick Boucher (D-VA) and John Doolittle (R-CA) have introduced a bill that would scale back the effect of the anti-circumvention provisions of the DMCA and limit the liability of technological innovators, sparking debate among all stakeholders.

The Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007, or FAIR USE Act (pdf), has been wrongly equated with a re-introduction of the Representatives’ DMCA reform bill from the 109th Congress, HR 1201. It’s actually different in subtle but important ways.

Boucher’s 2005 bill inroduced a pair of generic escape clauses for those who sought to engage in activity that would be legal were it not for 17 USC § 1201. The bill would have permitted a person to circumvent any DRM for any otherwise legal purpose–e.g., making a video collage to show in a media studies classroom.

The 2005 also bill would have permitted the development and sale of devices that circumvent digital rights management (DRM) as long as those devices have substantial noninfringing uses. This is the standard from Sony v. Universal, the case in which the Supreme Court ruled (5-4) that allowed the VCR to live. The bill also would have removed secondary copyright liability for any device “except in instances of direct infringement.”

The 2007 bill includes a very similar and highly commendable attempt at reducing the standard for secondary infringement:

No personshall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device that is capable of substantial, commercially significant noninfringing use.

This would substantially reduce the legal risk of developing the next great media technology.

The new version of DMCA reform, however, is less categorical. Rather, it expands the hodgepodge of exemptions to the bans on circumventing DRM and developing technologies capable of circumvention.

It would legislate the six temporary exemptions set out by the Copyright Office last November in its triennial rulemaking. It would also create a few new exemptions, permitting circumvention for the following reasons:

Creating audiovisual compilations for the classroom

Skipping commercials or other objectionable materials

Transmitting works over a home network (not to be confused with the whole series of tubes)

Gaining access to public domain works that are locked down by DRM (other laws still prevent one from hacking into Westlaw to access their well-organized collection of US government documents)

Gaining “access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research”

Archiving and preservation in libraries.

The bill has its usual chorus of supporters. Leading the charge is the EFF, which urges voters to contact their congresspersons in support of Boucher’s bill. In the last few days, hundreds of bloggers have echoed this call.

The RIAA, meanwhile, are dead-set against this bill. This public opposition has, in the short term at least, had an ironic effect of bringing greater attention to the proposal. One blogger argues: “If the RIAA hates it, it must be good for us.”

This is all predictable cheerleading; to me, the most interesting discussion is on ArsTechnica (Digital Fair Use bill introduced to US House (sans teeth), Ken Fisher, Feb 27; FAIR USE Act analysis: DMCA reform left on the cutting room floor, Timothy B. Lee, Feb 28). The posts lament the tempering of the DMCA reform provisions.

The authors are disappointed to lose the 2005 bill’s provisions permitting the development and marketing of circumvention-enabling technologies. Lee (not to be confused with Tim Berners Lee) writes, “The tools required to exercise fair use are difficult to find, not as user-friendly as they could be, and not supported by major software companies like Apple and Microsoft.” Both authors also regret that, in the shift from a generalized exemption to a list of specific exemptions, Jane Consumer still gains no legal right to circumvent DRM to make personal copies.

Given the choice, I would also support the 2005 version over the 2007 version. But despite the griping of the RIAA and ArsTechnica alike, I think the 2007 version has one important advantage on its side: it’s much more likely to pass. I will be calling my Representative soon to urge him to support the bill.

All the same, here’s one minor reform I would suggest for Boucher and Doolittle: remove the words “of substantial public interest” from the proposed 17 USC § 1201(a)(1)(G)(v). This is a stipulation required to qualify for the exemption in order to engage in criticism and commentary. In other words, as the bill is now written, a plaintiff could argue that an act of circumvention is not legal because the protected work is of little public interest.

As a media studies scholar, I can assure you that EVERY media work worth criticizing and commenting upon is of substantial public interest, from Crash to hardcore porn. Copyright law is already too often employed in the service of those who seek to censor criticism, and vague language is always a threat to those with the least money.

In a take-it-or-leave-it, however, I’ll take the FAIR USE act any day of the week.