Category: Mass Communication Law

A quick reading the bill text shows that, while doing a bit more to advance fair use, it doesn’t quite go as far as creating a “right.”

First, the bill sets a standard for statutory damages for secondary infringement directing the courts to find that infringement was “done under circumstances in which no reasonable person could have believed such conduct to be lawful.” However, by limiting the language to secondary infringement it’s unclear how this would reach a user who is usually the primary infringer who is for some reason unaware that their activity was infringing. If changes are being made to this section, why not lower statutory damages for infringers who aren’t profiting from their piracy?

The bill includes new protections for hardware manufacturers if their device is capable of “substantial, commercially significant noninfringing use.” This may be good for protecting new and innovative devices, but could also cause confusion over just what a user could legally do with such a device.

Finally, the bill adds additional exemptions for creating compilations, skipping commercial, transmitting via a home network, accessing public domain works, and replacing lost or stolen works owned by a library. These are just the type of specific exemptions that are needed to give users confidence of how they are able to use a copyrighted work.

In all, the bill extends some of the boundaries of fair use, but doesn’t come anywhere near creating a “right” or any other drastic change to the fair use landscape.

A post over at Ars Technica points out another important deficit that this bill does not address: protecting developers of “circumventing devices.”

These are all legitimate reasons for circumvention, but in practice they’re rendered toothless by the fact that they apply only to the act of circumvention itself, not to the act of “trafficking” in tools that would enable non-programmers to take advantage of them. So if Boucher’s legislation passed, a film studies professor would be permitted to use software such as Handbrake to circumvent the copy protection on DVDs and create an audiovisual presentation featuring scenes from various movies. However, developing or distributing Handbrake in the United States would still be a crime.

Digital Fair Use Bill Introduced In Congress – Post I.T. – A Technology Blog From The Washington Post – washingtonpost.com & Reps. Boucher and Doolittle Introduce the FAIR USE Act of 2007

U.S. Representatives Rick Boucher (D-VA) and John Doolittle (R-CA) have introduced a bill which is designed to alter the Fair Use landscape under the DMCA. Rep. Boucher summarized:

“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.”

However, as any good copyright lawyer will tell you, fair use is a defense to infringement–not a right. Perhaps legislative action such as this could help give the public exactly what it sorely needs: guidelines or boundaries (I’ll still avoid using the word “right” here) for the typical user of a copyrighted work.

Under the “old” media landscape, deep pockets and insurance could withstand the threat of an infringement suit. Now, participatory media have pushed the fair-use-as-defense model to its breaking point. For the typical user of digital media to know what is permissible under the law, there needs to be a better way for users to engage with new media without worrying about being vulnerable to a lawsuit. A change like this may be controversial, but I would argue that it’s far superior to enforce a law by foster public acceptance and legitmacy…as opposed to purely enforcing the limits of the law through DRM.

Here’s a link to the draft text.