New legislation introduced in the U.S. House of Representatives could result in amendments to the Digital Millennium Copyright Act (DMCA) in favor of relaxed usage rights for digital media. On February 27, Representatives Rick Boucher (D-VA) and John Doolittle (R-CA) introduced the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act). Among a few other modifications, the Act would create a handful of specific exemptions from the DMCA’s prohibition on “unlocking” the rights management features of certain digital media. As a result, end users might be able to legally create, for example, backup copies of DVD and other purchased content. However, in a concession to opponents of previous, similar legislation, the Act would not create a fair use defense to a claim of circumvention in violation of the DMCA unless the conduct fell within one of the Act’s six enumerated exceptions:
(i) an act of circumvention that is carried out solely for the purpose of making a compilation of portions of audiovisual works in the collection of a library or archives for educational use in a classroom by an instructor;(ii) an act of circumvention that is carried out solely for the purpose of enabling a person to skip past or to avoid commercial or personally objectionable content in an audiovisual work;
(iii) an act of circumvention that is carried out solely for the purpose of enabling a person to transmit a work over a home or personal network, except that this exemption does not apply to the circumvention of a technological measure to the extent that it prevents uploading of the work to the Internet for mass, indiscriminate redistribution;
(iv) an act of circumvention that is carried out solely for the purpose of gaining access to one or more works in the public domain that are included in a compilation consisting primarily of works in the public domain;
(v) an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; or
(vi) an act of circumvention that is carried out solely for the purpose of enabling a library or archives meeting the requirements of section 108(a)(2), with respect to works included in its collection, to preserve or secure a copy or to replace a copy that is damaged, deteriorating, lost, or stolen.
Significantly, the Act also would codify the Supreme Court’s “Betamax decision,” by eliminating any potential liability for copyright infringement “based on the design, manufacture, or distribution of a hardware device or of a component of the device if the device is capable of substantial, commercially significant noninfringing use.”
If enacted, the Act would represent a major re-working of some of the more complained-about aspects of the DMCA. While opposition from media producers and copyright owners is likely to pursue the bill, it will be interesting to see if the compromises its authors have included will be sufficient to see it through to passage.