FAIR USE Act Aims To Clarify Copyright Limits

The legislation would amend the Digital Millennium Copyright Act so that teachers, libraries and certain individuals could circumvent DRM locks.
Calling the fair use rights of consumers of digital media "severely threatened," two congressmen on Tuesday introduced the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act) to restore balance to copyright law.

U.S. Representatives Rick Boucher (D-VA) and John Doolittle (R-CA) proposed the legislation to amend the Digital Millennium Copyright Act. The 1988 landmark bill is widely seen by consumer advocacy and cyber liberties groups as favoring corporate owners of copyrighted content at the expense of consumers and fair use rights.

The most controversial aspect of the DMCA is its prohibition on circumventing digital locks measures that protect digital content. The DMCA makes it illegal to decrypt the content scrambling system (CSS) used to protect DVDs from being copied. It also makes it illegal for Apple's competitors to write software that circumvents Apple's FairPlay digital rights management system in an effort to produce a device that interoperates with iTunes.

The FAIR USE Act addresses this issue only in specific circumstances, according to the lawmakers, in ways that "do not pose a comparable potential threat to [content owners'] business models." It does not aim to establish a general fair use defense for circumventing DRM.

The Act aims to limit the statutory damages for individuals and organizations sued for contributory infringement, inducement of infringement, vicarious liability, or other indirect infringement.

"What worries me about secondary liability is that it simply discourages intermediaries from allowing users to engage in activities so that they shut them down at the first hint of trouble," said Paul Allen Levy, an attorney with the Public Citizen Litigation Group. "It's sort of an indirect form of censorship."

The Act supports the Supreme Court's Betamax decision, which established the legality of video recorders, by immunizing hardware companies that make devices "capable of a substantial, commercially significant non-infringing use," even if they an also be used for illegal copying.

Rep. Boucher claims the Supreme Court's decision in Metro-Goldwyn-Mayer Studios v. Grokster, Ltd., in which Grokster was held liable for contributory infringement, created uncertainty for tech companies that make such devices.

Rules published in the Federal Register on November 27, 2006 lay out six circumstances in which circumventing digital locks constitute fair use: 1) making compilations of protected works for college or university use in the classroom; 2) making video and computer games run when they require obsolete hardware; 3) operating software that requires a dongle that doesn't work and is obsolete; 4) accessing e-books when access controls inhibit either the book's read-aloud function or the use of specialized formats (as might be used to make text more legible); 5) connecting wireless handsets to wireless telephone networks when blocked by protected firmware; and 6) accessing protected audio files on compact discs for security research.

The Act expands these rights. In a speech introducing the Act, Rep. Boucher explained the circumstances in which circumvention is acceptable under the Act:

Teachers at all grade levels, rather than just college level, are permitted to bypass DRM.

Consumers can "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 (such as pornographic scenes) contained in the work." This does not include the right to copy DVDs to make backups.

Court rulings last year made clear that renting or selling sanitized versions of Hollywood films did not qualify as fair use, but the Act appears to slightly expand a loophole enshrined in the 2005 Family Entertainment and Copyright Act that permits such services if they filter content dynamically, without creating a fixed edit of the source video.

The Act authorizes "consumers to transmit a work over a home or personal network but not to circumvent for purposes of uploading that work to the Internet."

Individuals may access public domain works locked in protected collections where the bulk of the material is public domain. This would, as Boucher put it, "preclude content owners from denying the public access to public domain works simply by repackaging them with one or more copyrighted works and then applying a digital lock to restrict or deny access to all of the works."

The Act allows reporters, teachers and others to bypass locks that protect "works of substantial public interest, when circumvention is accomplished solely for purposes of criticism, comment, news reporting, scholarship, or research."

And the Act allows librarians and archivists to bypass DRM "for the purpose of enabling a library or an archive to preserve or secure a copy of a work or to replace a copy that is damaged, deteriorating, lost, or stolen."

"It seems like a step in the right direction," said Levy. "I hope it makes more progress this year than it has in the past."