FAIR USE Act of 2007 Takes Surgical Approach to DMCA

HR 1201 is back. And this time, it is has been repackaged with a host of narrow exemptions.

The Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act), introduced by Reps. Rick Boucher and John Doolittle on Feb. 27,  adopts a multi-prong approach to correct perceived imbalances in the way the DMCA handles fair use.

The bill drops the broader fair use exemption of HR 1201--no DMCA violation for circumventing a DRM to make a noninfringing use--in favor of a series of specific, limited exemptions. No DMCA liability would attach where the circumvention is carried out solely for the purposes of:

1. Making a compilation of portions of audiovisual works for educational use in a classroom. (While the Librarian's latest rulemaking included a similar exemption, that exemption is limited to film scholars.)
2. Skipping commercials or "personally objectionable content" in an audiovisual work.
3. Transmitting a work "over a home or personal network," but only to the extent that the circumvention does not interfere with DRM restrictions that prevent the uploading of the protected content to the Internet. (Thus, this exemption could not be used as a loophole to bypass the proposed broadcast flag content protection system.)
4. Gaining access to public domain works contained within a compilation "consisting primarily of works in the public domain."
5. Gaining access to works of "substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research."
6. Enabling a library or archive to preserve a copy or replace a copy that is lost or stolen.

Conspicuously absent from this list is an exemption for making backup copies, a feature that has long been cited by proponents of the measure as a legitimate activity that the bill would enable. In an explanatory document accompanying the legislation, the authors do address the issue, though not in the way one would expect. They point out that the scene-skipping exception "does not authorize consumers to make back up DVDs for archival or any other purpose."

This is an important concession to content owners, who have argued previously that giving consumers the tools to make archival copies would lead to rampant piracy. The Copyright Office reached a similar conclusion in its recent recommendation during the last triennial rulemaking, concluding that making backup copies of DVDs would sanction widespread circumvention and, in any event, is probably not a fair use. Undoubtedly, this took the steam out of the backup copy argument.

Though, in practical effect, it is hard to see how enabling the other exceptions Boucher does call for could be accomplished without the same technology that would allow for the making of backup copies. For this reason, the content industries will likely reiterate many of the same piracy concerns they have previously raised.

The consumer electronics industry will certainly benefit from the bill. Once again, Boucher's bill would codify the Sony-Betamax innovation principle: no secondary liability for designing, making, or distributing a hardware device or component that "is capable of substantial, commercially significant noninfringing use." What is noteworthy here is the addition of the words "commercially significant," a key qualification contained in the Supreme Court's opinion but omitted from HR 1201. Further insulating the consumer electronics industry from secondary liability is a provision in the measure that would foreclose the possibility of statutory damages against secondary infringers except where the secondary infringement occurs "under circumstances in which no reasonable person could have believed such conduct to be lawful."

Finally, the FAIR USE Act provides permanent exemption status to the classes of copyrighted works identified in the most recent triennial rulemaking by the Librarian of Congress. This removes the possibility of the Librarian later having a change of heart and ejecting these exemptions from the list the next go-around.