Fair Use Bill Gains Ground

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WASHINGTON -- A bill protecting so-called "fair use" rights will get a serious hearing in the U.S. Congress. That's the prediction from advocates on both sides of a debate over whether the U.S. Digital Millennium Copyright Act tramples consumer rights.

With the support of Representative Joe Barton (R-Texas), named chairman of the House Energy and Commerce Committee in February, the 18-month-old Digital Media Consumers' Rights Act should eventually pass through Congress, predicts Michael Petricone, vice president for technology policy at the Consumer Electronics Association trade group.

Petricone and three others advocates on both sides of the issue debated the anticircumvention provisions of the DMCA in front of congressional staffers at a Congressional Internet Caucus event this week. The DMCA outlaws most attempts to circumvent copy protection on digital content, as well as devices primarily used to infringe copyright.

Opponents of the DMCA's anticircumvention provisions, including Barton and Digital Media Consumers' Rights Act sponsor Representative Rich Boucher (D-Virginia), argue the DMCA goes too far in making it illegal for consumers to break copy protections in an attempt to exercise their legal fair use rights, such as making backup copies of DVDs or excerpting a DVD or CD in a school report.

"I think there is a growing consensus the DMCA went too far," Petricone says. "We are quite confident [Boucher's bill] will pass. It may be now, it may be later."

No Changes Needed?

With Barton's support, the Boucher bill could find some traction in Congress, adds David Green, vice president and counsel for the Motion Picture Association of America, which opposes the proposed change to the DMCA. Green says he hopes debates like the one this week will convince lawmakers that the Boucher bill isn't needed.

Boucher's bill would "put a hole in the ship," Green says, by allowing the creation of devices or technologies that have significant copyright-infringing uses. The explosion of digital content available in the last six years is due to the protections of the DMCA, he says.

"What's the pressing need here?" Green asks. "Do we see people out there who say, 'I must back up my DVDs because I buy them and they disappear immediately'?"

Difference of Opinion

But Petricone and Fred von Lohmann, senior intellectual property lawyer for the Electronic Frontier Foundation, argue that the DMCA turns copyright law on its head by outlawing most technologies that can have other uses in addition to violating copyright, instead of allowing those technologies, as older copyright law did.

While the DMCA has done little to stop large-scale copyright thieves, it has kept consumers from making personal copies of DVDs or CDs, halted some cybersecurity research, and discouraged consumer electronics vendors from introducing new products, von Lohmann says.

"Federal laws should strive to not do more harm than good," von Lohmann adds. "[The DMCA] hasn't stopped the pirates--in fact, it hasn't even slowed the pirates down."

But Green and Jonathan Zuck, president of the Association for Competitive Technology, note that the DMCA allows exemptions for activities such as research, and the U.S. Copyright Office has the power to review the DMCA every three years and make exemptions to the anticircumvention provisions.

The DMCA creates a strong framework for protecting digital copyrights, Zuck says. Boucher's bill "statutorily creates an excuse for infringement," he says.

Petricone disagrees, saying the DMCA has discouraged consumer electronics vendors from introducing new products for fear of getting sued.

"What you call defining a framework, we call creating an endless cycle of litigation," he says to Zuck. "Business people are very risk adverse. The question they ask their lawyers about a new product is not, 'Can we win a lawsuit?' but, 'Are we going to get sued?'"

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