FAIR USE Act
Encyclopedia
The "Freedom and Innovation Revitalizing United States Entrepreneurship Act of 2007" (FAIR USE Act) was a proposed United States
copyright
law that would have amended Title 17 of the U.S. Code
, including portions of the Digital Millennium Copyright Act
(DMCA) to "promote innovation, to encourage the introduction of new technology, to enhance library preservation efforts, and to protect the fair use rights of consumers, and for other purposes." The bill would prevent courts from holding companies financially liable for copyright infringement
stemming from the use of their hardware or software, and proposes six permanent circumvention exemptions to the DMCA.
The bill was introduced February 27, 2007 in the 110th Congress by Representative Rick Boucher
(D-VA). On March 19, 2007, the bill was referred to the House Subcommittee on Courts, the Internet, and Intellectual Property. The bill was not reintroduced.
Boucher emphasized that the bill would not make circumvention an act of fair use
, but would instead redefine which acts qualify as permissible circumvention, stating that
s (DMCRA) of 2003 and 2005. Previously, Boucher co-sponsored the “Benefit Authors without Limiting Advancement or Net Consumer Expectations
,” or “BALANCE Act,” which sought to amend the DMCA to account for noninfringing circumvention
.
The Digital Media Consumers' Rights Acts stressed the necessity of adequate labeling on media bearing digital rights management (DRM
) and similar protections to prevent consumer confusion. Both amended the DMCA to include exceptions for acts of circumvention that furthered consumers’ exercise of fair use
rights.
The DMCRA of 2003 included a section of fair use amendments, including amendments to the exemptions described by Section 1201(c)
of Title 17. The bill exempted research into “technological measures” from infringement and enabled consumers to circumvent DRM, and qualified that using services for noninfringing uses would not be a violation. The bill also explicitly stated that manufacturing and distributing hardware or software capable of noninfringing uses would likewise not be a violation.
The revised DMCRA of 2005 included a similar section of "fair use amendments", but did not make mention regarding users of noninfringing circumvention services.
The Motion Picture Association of America
(MPAA) and the Recording Industry Association of America
(RIAA) criticized both incarnations of the bill, arguing that the language was too permissive and would “legalize hacking and piracy.”
.
In effect, Section 2 reverses the Supreme Court’s decision in MGM Studios, Inc. v. Grokster, Ltd.
(2005), which held that "one who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement," which has gradually come to be interpreted to mean that any distribution of an object capable of infringement is liable for any resulting infringement. With the Grokster decision null, the prevailing standard regarding secondary liability would return to the Court's decision in Sony v. Universal (also known as the Betamax case).
Section 2 echoes the Court's language in Sony, stating specifically that one may not be held liable 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."
Educational compilations for college film and media courses were exempt by the Librarian of Congress under Section 1201
of the DMCA, but that exemption was set to expire in 2009. Section(I) not only made the exemption permanent, it expanded the exemption to apply to compilations for coursework at all grade levels, in any subject area.
Circumvention for the purposes of avoiding objectionable content became an issue in 2006, when a Denver judge ruled that the edited versions of films sold by companies such as CleanFlicks
and CleanFilms were not considered fair use. These companies, along with a handful of others, removed objectionable content (such as nudity and profanity) from DVDs and sold the edited versions to consumers.
In its decision, the court did not address the legality of companies who offered software or hardware that would “read” unaltered media and skip objectionable content. Section (II) allows the sale of hardware, such as modified DVD players sold by CleanPlay, and software, like downloadable plug-ins, that would skip such content.
, but explicitly prevents the uploading of media “to the Internet for mass, indiscriminate redistribution."
.
Arguably, Section (IV) would expressly allow initiatives such as Google Books, which was originally pioneered in 2004 as a database to increase the availability of, and readers' access to, public domain works.
and allows circumvention that enables access to public interest works for the purposes of "criticism, comment, news reporting, scholarship, or research."
The language of Section (V) is ambiguous, which led some critics to worry that the language was too broad, potentially enabling students to circumvent copyright to access books, films, and music for coursework, or allowing professors to create course packs
without obtaining permission from publishers.
Since the DCMA was passed, librarians across the country protested the limited circumvention rights they were afforded. The Association of Research Libraries
addressed the problem of preservation head-on, arguing that “preservation is one of a library’s most critical functions... the DMCA is interfering with our ability to preserve these works.” The provisions of Section (VII) would effectively eliminate librarians' problems with preservation of works in a library's collection.
Proponents of DMCA reform critiqued the bill for being "wishy-washy". Despite the included amendments, several of which arose in response to public protest, the Act did not allow for circumvention for ripping
personal copies for cross-media consumption (i.e. ripping a DVD for use on a video phone or laptop), which some considered the biggest problem with the DMCA.
The bill was also criticized for not maintaining the more strongly worded exemptions enumerated in previous incarnations of DMCA reform legislation, in particular, those regarding the makers and distributors of circumvention technology, which meant that “a film studies professor would be permitted to use software such as Handbrake
... However, developing or distributing Handbrake in the United States would still be a crime.”
Opponents of the bill focused on problems with the scope and breadth of its language. As with previous Boucher-sponsored bills, the RIAA argued that the bill would “repeal the DMCA and legalize hacking."
United States Code
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law that would have amended Title 17 of the U.S. Code
Title 17 of the United States Code
Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law.—Subject Matter and Scope of Copyright—Copyright Ownership and Transfer—Duration of Copyright—Copyright Notice, Deposit, and Registration—Copyright Infringement and...
, including portions of the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(DMCA) to "promote innovation, to encourage the introduction of new technology, to enhance library preservation efforts, and to protect the fair use rights of consumers, and for other purposes." The bill would prevent courts from holding companies financially liable for copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
stemming from the use of their hardware or software, and proposes six permanent circumvention exemptions to the DMCA.
The bill was introduced February 27, 2007 in the 110th Congress by Representative Rick Boucher
Rick Boucher
Frederick Carlyle "Rick" Boucher is the former U.S. Representative for , serving from 1983 until 2011. He is a member of the Democratic Party.-Early life, education and career:...
(D-VA). On March 19, 2007, the bill was referred to the House Subcommittee on Courts, the Internet, and Intellectual Property. The bill was not reintroduced.
Boucher emphasized that the bill would not make circumvention an act of fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
, but would instead redefine which acts qualify as permissible circumvention, stating that
- “The Digital Millennium Copyright Act dramatically tilted the copyrightCopyrightCopyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
balance toward complete copyright protection at the expense of the Fair Use rights of the users of copyrighted material. The reintroduced legislation will assure that consumers who purchase digital mediaDigital mediaDigital media is a form of electronic media where data is stored in digital form. It can refer to the technical aspect of storage and transmission Digital media is a form of electronic media where data is stored in digital (as opposed to analog) form. It can refer to the technical aspect of...
can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright of the work.”
History
The FAIR USE Act is Boucher’s third attempt at reforming provisions within the DMCA, the previous two being the Digital Media Consumers' Rights ActDigital Media Consumers' Rights Act
The Digital Media Consumers' Rights Act is a proposed law in the United States that directly challenges portions of the Digital Millennium Copyright Act, and would intensify Federal Trade Commission efforts to mandate proper labeling for copy-protected CDs to ensure consumer protection from...
s (DMCRA) of 2003 and 2005. Previously, Boucher co-sponsored the “Benefit Authors without Limiting Advancement or Net Consumer Expectations
BALANCE Act
The Benefit Authors without Limiting Advancement or Net Consumer Expectations Act of 2003 is a bill that would amend Title 17 of the United States Code, "to safeguard the rights and expectations of consumers who lawfully obtain digital entertainment." The bill was proposed in the 108th Congress...
,” or “BALANCE Act,” which sought to amend the DMCA to account for noninfringing circumvention
Anti-circumvention
Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow...
.
The Digital Media Consumers' Rights Acts stressed the necessity of adequate labeling on media bearing digital rights management (DRM
DRM
-Information technology:*Digital rights management, access control technologies that limit the usage of digital content and devices*Data Reference Model, one of the five reference models of the Federal Enterprise Architecture...
) and similar protections to prevent consumer confusion. Both amended the DMCA to include exceptions for acts of circumvention that furthered consumers’ exercise of fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
rights.
The DMCRA of 2003 included a section of fair use amendments, including amendments to the exemptions described by Section 1201(c)
Title 17 of the United States Code
Title 17 of the United States Code is the title of the United States Code that outlines United States copyright law.—Subject Matter and Scope of Copyright—Copyright Ownership and Transfer—Duration of Copyright—Copyright Notice, Deposit, and Registration—Copyright Infringement and...
of Title 17. The bill exempted research into “technological measures” from infringement and enabled consumers to circumvent DRM, and qualified that using services for noninfringing uses would not be a violation. The bill also explicitly stated that manufacturing and distributing hardware or software capable of noninfringing uses would likewise not be a violation.
The revised DMCRA of 2005 included a similar section of "fair use amendments", but did not make mention regarding users of noninfringing circumvention services.
The Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
(MPAA) and the Recording Industry Association of America
Recording Industry Association of America
The Recording Industry Association of America is a trade organization that represents the recording industry distributors in the United States...
(RIAA) criticized both incarnations of the bill, arguing that the language was too permissive and would “legalize hacking and piracy.”
Provisions
The FAIR USE Act consists of two main provisions: redefining copyright infringement and amending copyright circumvention exemptions.Section 2: Copyright infringement
Section 2 would amend Section 504(c)(2) of Title 17, and would prevent courts from levying statutory damages in cases of secondary infringementSecondary liability
Secondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary liability rules for trademarks and patents; however,...
.
In effect, Section 2 reverses the Supreme Court’s decision in MGM Studios, Inc. v. Grokster, Ltd.
MGM Studios, Inc. v. Grokster, Ltd.
MGM Studios, Inc. v. Grokster, Ltd. 545 U.S. 913 is a United States Supreme Court decision in which the Court unanimously held that defendant P2P file sharing companies Grokster and Streamcast could be sued for inducing copyright infringement for acts taken in the course of marketing file sharing...
(2005), which held that "one who distributes a device with the object of promoting its use to infringe copyright ... is liable for the resulting acts of infringement," which has gradually come to be interpreted to mean that any distribution of an object capable of infringement is liable for any resulting infringement. With the Grokster decision null, the prevailing standard regarding secondary liability would return to the Court's decision in Sony v. Universal (also known as the Betamax case).
Section 2 echoes the Court's language in Sony, stating specifically that one may not be held liable 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."
Section 3: DMCA amendments
Section 3 permanently amends the DMCA to declassify six types of circumvention as infringing use. Circumvention by libraries and archives, to skip objectionable content, to transmit over a personal network, to gain access to public domain works, for public interest work and research, and for preservation are added to the pre-existing exceptions.(I) Libraries and archives
Section (I) allows libraries and archives to circumvent copyright for the purposes of compiling audiovisual works that are in a library's collection for educational classroom use by an instructor.Educational compilations for college film and media courses were exempt by the Librarian of Congress under Section 1201
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
of the DMCA, but that exemption was set to expire in 2009. Section(I) not only made the exemption permanent, it expanded the exemption to apply to compilations for coursework at all grade levels, in any subject area.
(II) Objectionable content
Section (II) allows specifically for circumvention via hardware or software that skips objectionable content.Circumvention for the purposes of avoiding objectionable content became an issue in 2006, when a Denver judge ruled that the edited versions of films sold by companies such as CleanFlicks
CleanFlicks
CleanFlicks is a Utah-based business which produced edited versions of films to remove content that they considered inappropriate for children or that viewers might otherwise find offensive. Members of The Church of Jesus Christ of Latter-day Saints were its predominant market...
and CleanFilms were not considered fair use. These companies, along with a handful of others, removed objectionable content (such as nudity and profanity) from DVDs and sold the edited versions to consumers.
In its decision, the court did not address the legality of companies who offered software or hardware that would “read” unaltered media and skip objectionable content. Section (II) allows the sale of hardware, such as modified DVD players sold by CleanPlay, and software, like downloadable plug-ins, that would skip such content.
(III) Personal network
Section (III) allows circumvention for the purpose of transmitting media over a personal networkPersonal area network
A personal area network is a computer network used for communication among computer devices, including telephones and personal digital assistants, in proximity to an individual's body. The devices may or may not belong to the person in question. The reach of a PAN is typically a few meters...
, but explicitly prevents the uploading of media “to the Internet for mass, indiscriminate redistribution."
(IV) Public domain works
Section (IV) allows for circumvention that enables access to a public domain work, or a compilation of works that are primarily in the public domainPublic domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
.
Arguably, Section (IV) would expressly allow initiatives such as Google Books, which was originally pioneered in 2004 as a database to increase the availability of, and readers' access to, public domain works.
(V) Public interest work and research
Section (V) is similar to a broader version of the third prong of fair useFair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
and allows circumvention that enables access to public interest works for the purposes of "criticism, comment, news reporting, scholarship, or research."
The language of Section (V) is ambiguous, which led some critics to worry that the language was too broad, potentially enabling students to circumvent copyright to access books, films, and music for coursework, or allowing professors to create course packs
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
without obtaining permission from publishers.
(VII) Circumvention for preservation
Section (VII) allows allows circumvention for purposes of preservation by a library or archives, with respect to works in its collection.Since the DCMA was passed, librarians across the country protested the limited circumvention rights they were afforded. The Association of Research Libraries
Association of Research Libraries
The Association of Research Libraries is an organization of the leading research libraries in North America. As of October 2006, it comprises 123 libraries at comprehensive, research-intensive institutions in the US and Canada that share similar missions, aspirations, and achievements...
addressed the problem of preservation head-on, arguing that “preservation is one of a library’s most critical functions... the DMCA is interfering with our ability to preserve these works.” The provisions of Section (VII) would effectively eliminate librarians' problems with preservation of works in a library's collection.
Criticism
The FAIR USE Act was subject to criticism of both proponents and opponents of DMCA reform.Proponents of DMCA reform critiqued the bill for being "wishy-washy". Despite the included amendments, several of which arose in response to public protest, the Act did not allow for circumvention for ripping
Ripping
Ripping is the process of copying audio or video content to a hard disk, typically from removable media. The word is used to refer to all forms of media. Despite the name, neither the media nor the data is damaged after extraction....
personal copies for cross-media consumption (i.e. ripping a DVD for use on a video phone or laptop), which some considered the biggest problem with the DMCA.
The bill was also criticized for not maintaining the more strongly worded exemptions enumerated in previous incarnations of DMCA reform legislation, in particular, those regarding the makers and distributors of circumvention technology, which meant that “a film studies professor would be permitted to use software such as Handbrake
HandBrake
HandBrake is a general-purpose, open-source, cross-platform, multithreaded video transcoder software application. HandBrake was originally developed by titer in 2003 as a general-purpose video transcoder to make ripping a film from a DVD to a data storage device easier...
... However, developing or distributing Handbrake in the United States would still be a crime.”
Opponents of the bill focused on problems with the scope and breadth of its language. As with previous Boucher-sponsored bills, the RIAA argued that the bill would “repeal the DMCA and legalize hacking."
See also
- List of intellectual property legislation proposed in the United States Congress
- Digital Millennium Copyright ActDigital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
- Digital Media Consumers' Rights ActDigital Media Consumers' Rights ActThe Digital Media Consumers' Rights Act is a proposed law in the United States that directly challenges portions of the Digital Millennium Copyright Act, and would intensify Federal Trade Commission efforts to mandate proper labeling for copy-protected CDs to ensure consumer protection from...
- INDUCE Act
- Public Domain Enhancement ActPublic Domain Enhancement ActThe Public Domain Enhancement Act , ) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status...
- PRO-IP ActPRO-IP ActThe Prioritizing Resources and Organization for Intellectual Property Act of 2008 , is a United States law that increases both civil and criminal penalties for trademark, patent and copyright infringement...
External links
FAIR USE Act- The US Library of Congress page on this bill: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:h.r.01201:
- The OpenCongress page on this bill: http://www.opencongress.org/bill/110-h1201/show
- The GovTrackGovTrackGovTrack.us is a website developed by then-student Joshua Tauberer who launched it as a hobby. It enables its users to track the bills and members of the United States Congress. Users can add trackers to certain bills. The website collects data on Congress members, allowing the users to check...
progress on this bill: http://www.eff.org/deeplinks/archives/005141.php
United States Code
- Title 17, Chapter 12, § 1201: http://www.law.cornell.edu/uscode/17/usc_sec_17_00001201----000-.html
- Title 17, Chapter 12, § 504: http://www.law.cornell.edu/uscode/17/usc_sec_17_00000504----000-.html