FAIR USE Act

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FAIR USE Act
Great Seal of the United States (obverse).svg
Long titleFreedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007
Acronyms (colloquial)FAIR USE Act
Codification
Acts amended Digital Millennium Copyright Act
U.S.C. sections amendedSection 504(c)(2), Title 17 of the U.S. Code
Legislative history

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." [1] 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.

Contents

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

“The Digital Millennium Copyright Act dramatically tilted the copyright 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 media 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.” [2]

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 Acts (DMCRA) of 2003 and 2005. [3] 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. [4]

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. [5]

The DMCRA of 2003 included a section of fair use amendments, including amendments to the exemptions described by Section 1201(c) of Title 17. [6] 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. [7]

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.” [8]

Provisions

The FAIR USE Act consists of two main provisions: redefining copyright infringement and amending copyright circumvention exemptions.

Section 2 would amend Section 504(c)(2) [9] of Title 17, and would prevent courts from levying statutory damages in cases of secondary infringement. [10]

Section 2 would also amend Section 501 by adding that "no person shall be 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." In effect, this would reverse 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," [11] which has gradually come to be interpreted to mean that any distribution of an object capable of infringement is liable for any resulting infringement. [12] 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." [10]

Section 3: DMCA amendments

Section 3 first codifies the set of circumvention exemptions granted by the Librarian of Congress as part of the 2006 DMCA rule making process.

Section 3 also amends the DMCA to add exceptions for six types of circumvention. 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 as a new set of exceptions. [13]

(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. [10]

Educational compilations for college film and media courses [14] 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.

(II) Objectionable content

Section (II) allows specifically for circumvention via hardware or software that skips objectionable content. [10]

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. [15] 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. [16]

(III) Personal network

Section (III) allows circumvention for the purpose of storing or transmitting media over a personal network, but explicitly prevents the uploading of media “to the Internet for mass, indiscriminate redistribution." [10]

(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 domain. [10]

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. [17]

(V) Public interest work and research

Section (V) is similar to a broader version of the third prong of fair use. It allows circumvention that is carried out to gain access to a work of substantial public interest solely for the purposes of "criticism, comment, news reporting, scholarship, or research." [10]

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. [18]

(VI) Circumvention for preservation

Section (VI) allows circumvention for purposes of preservation by a library or archives, with respect to works in its collection. [19]

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.” [20] 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 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. [21]

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.” [22]

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." [23]

See also

Related Research Articles

The Digital Media Consumers' Rights Act (DMCRA) was 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 deceptive labeling practices. It would also allow manufacturers to innovate in hardware designs and allow consumers to treat CDs as they have historically been able to treat them.

Ripping is extracting all or parts of digital contents from a container. Originally, it meant to rip music out of Amiga games. Later, the term was used to extract WAV or MP3 format files from digital audio CDs, but got applied as well to extract the contents of any media, most notably DVD and Blu-ray discs.

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 requirement for anti-circumvention laws was globalized in 1996 with the creation of the World Intellectual Property Organization's Copyright Treaty.

<i>Chamberlain Group, Inc. v. Skylink Technologies, Inc.</i> American legal case concerning the DMCA

The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 is a legal case heard by the United States Court of Appeals for the Federal Circuit concerning the anti-trafficking provision of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 1201(a)(2), in the context of two competing universal garage door opener companies. It discusses the statutory structure and legislative history of the DMCA to help clarify the intent of the anti-circumvention provisions and decide who holds the burden of proof. It expresses that the statute creates a cause of action for liability and does not create a property right, and holds that as Chamberlain had alleged that Skylink was in violation of the anti-trafficking provision, it had the burden to prove and failed to show that access was unauthorized and its rights were infringed under the Copyright Act. As Chamberlain incorrectly argued that Skylink had the burden of proof and failed to prove their claim, the court upheld summary judgment in favor of Skylink.

An Act to amend the Copyright Act was a proposed law to amend the Copyright Act initiated by the Government of Canada in the First Session of the Thirty-Eighth Parliament. Introduced by the Minister of Canadian Heritage and Minister responsible for Status of Women Liza Frulla and then Minister of Industry David Emerson as An Act to Amend the Copyright Act, it received its First Reading in the House of Commons of Canada on June 20, 2005. On November 29, 2005, the opposition to the government tabled a non-confidence motion which passed, dissolving Parliament and effectively killing the bill. The subsequent government tabled a similar bill called C-61.

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An Act to amend the Copyright Act was a bill tabled in 2008 during the second session of the 39th Canadian Parliament by Minister of Industry Jim Prentice. The bill died on the Order Paper when the 39th Parliament was dissolved prematurely and an election was called on September 7, 2008. The Conservative Party of Canada promised in its 2008 election platform to re-introduce a bill containing the content of C-61 if re-elected.

Information Society Directive 2001 European Union Directive on Copyright

The Information Society Directive is a directive of the European Union that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome.

The WIPO Copyright and Performances and Phonograms Treaties Implementation Act, is a part of the Digital Millennium Copyright Act (DMCA), a 1998 U.S. law. It has two major portions, Section 102, which implements the requirements of the WIPO Copyright Treaty, and Section 103, which arguably provides additional protection against the circumvention of copy prevention systems and prohibits the removal of copyright management information.

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the “Betamax case”, is a decision by the Supreme Court of the United States which ruled that the making of individual copies of complete television shows for purposes of time shifting does not constitute copyright infringement, but is fair use. The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs, cannot be liable for infringement. The case was a boon to the home video market, as it created a legal safe haven for the technology.

Digital Millennium Copyright Act Copyright law in the United States of America

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

An Act to amend the Copyright Act was a bill tabled on June 2, 2010 during the third session of the 40th Canadian Parliament by Minister of Industry Tony Clement and by Minister of Canadian Heritage James Moore. This bill served as the successor to the previously proposed but short-lived Bill C-61 in 2008 and sought to tighten Canadian copyright laws. In March 2011, the 40th Canadian Parliament was dissolved, with all the bills which did not pass by that point automatically becoming dead.

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<i>321 Studios v. Metro Goldwyn Mayer Studios, Inc.</i>

321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, is a district court case brought by 321 Studios seeking declaratory judgment from the court that their DVD ripping software, i.e. DVD Copy Plus and DVD X Copy do not violate the provisions of the Digital Millennium Copyright Act ("DMCA"), or, in the alternative, that the DMCA is unconstitutional because Congress exceeded its enumerated powers, these provisions are unconstitutionally vague and/or violate the First Amendment.

<i>Copyright Modernization Act</i>

An Act to amend the Copyright Act, also known as Bill C-11 or the Copyright Modernization Act, was introduced in the House of Commons of Canada on September 29, 2011 by Industry Minister Christian Paradis. It was virtually identical to the government's previous attempt to amend the Copyright Act, Bill C-32. Despite receiving unanimous opposition from all other parties, the Conservative Party of Canada was able to pass the bill due to their majority government. The bill received Royal Assent on June 29, 2012 becoming the first update to the Copyright Act since 1997.

The Unlocking Technology Act of 2013

The Unlocking Technology Act of 2013 is a United States proposed bi-partisan bill that aims to allow circumvention of digital rights management as long as there is no intention of copyright infringement. The bill would legalize actions such as cell phone unlocking and creating versions of copyrighted works specifically designed to be accessible to blind users. Section 2 of the bill would also require the Assistant Secretary for Communications and Information of the Department of Commerce to issue a report on the impact of 17 U.S.C. 1201 on consumer choice, competition, and free flow of information. The bipartisan bill introduced by Zoe Lofgren(D-CA) had three cosponsors: Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO).

Critical Commons

Critical Commons is an online repository of user-generated media. The archive is a project of the Media Arts and Practice division of the USC School of Cinematic Arts. The project supports the fair use of copyrighted media by educators.

Unlocking Consumer Choice and Wireless Competition Act

The Unlocking Consumer Choice and Wireless Competition Act is a United States public law that repeals a rulemaking determination by the United States Copyright Office that left it illegal for people to unlock their cellphones.

Remedies for copyright infringement in the United States can be either civil or criminal in nature. Criminal remedies for copyright infringement prevent the unauthorized use of copyrighted works by defining certain violations of copyright to be criminal wrongs which are liable to be prosecuted and punished by the state. Unlike civil remedies, which are obtained through private civil actions initiated by the owner of the copyright, criminal remedies are secured by the state which prosecutes the infringing individual or organisation.

Green v. Department of Justice is a pending lawsuit at the United States District Court for the District of Columbia filed to test the constitutionality of the anti-circumvention provisions enacted in the 1998 Digital Millennium Copyright Act (DMCA). The lawsuit argues that, as passed, the anti-circumvention provisions of the DMCA prevent legitimate speech under the First Amendment to the United States Constitution.

References

  1. ↑ "110th Congress H.R. 1201". Archived from the original on 2011-02-07. Retrieved 2011-03-18.
  2. ↑ "Boucher's latest 'digital rights' bill," Stanford Law Center for Internet and Society
  3. ↑ "Boucher to float a new version of DMCRA," Analoghole
  4. ↑ "109th Congress H.R. 4536 Cosponsors". Archived from the original on 2016-07-04. Retrieved 2011-03-20.
  5. ↑ 107th Congress, H.R. 5544
  6. ↑ Title 17, Chapter 12, § 1201(c)
  7. ↑ "Congress H.R. 107". Archived from the original on 2013-07-28. Retrieved 2011-03-22.
  8. ↑ "The Boucher Bill is Back," Archived 2011-03-11 at the Wayback Machine Alex Curtis for Public Knowledge
  9. ↑ Title 17, Chapter 12, §504(c)(2)
  10. 1 2 3 4 5 6 7 Archived 2011-02-07 at the Wayback Machine see H.R. 1201
  11. ↑ MGM Studios, Inc. v. Grokster Ltd.,
  12. ↑ "FAIR USE Act analysis: DMCA reform left on the cutting room floor," Tim Lee for ars technica
  13. ↑ "see H.R. 1201". Archived from the original on 2011-02-07. Retrieved 2011-03-18.
  14. ↑ "Educational uses of media" Archived 2011-02-24 at the Wayback Machine University of Pennsylvania
  15. ↑ "The Controversy over Movie Editing" Archived March 24, 2011, at the Wayback Machine
  16. ↑ "CleanFlicks Update: The Battle Continues," Archived 2011-02-17 at the Wayback Machine Director's Guild Association Monthly
  17. ↑ "About Google Books"
  18. ↑ "FAIR USE Act Aims To Clarify Copyright Limits," Thomas Claburn, Information Week.
  19. ↑ "Library Copyright Alliance Strongly Supports HR 1201, the FAIR USE Act," Archived 2011-05-22 at the Wayback Machine Association of Research Libraries
  20. ↑ Archived 2011-05-22 at the Wayback Machine see above
  21. ↑ "Fair Use Act Would Allow In-Home Content Sharing, not DVD Ripping," Archived 2011-10-02 at the Wayback Machine Julie Jacobson for CEPro
  22. ↑ see above
  23. ↑ "RIAA opposes new fair use bill," Grant Gross for Infoworld

FAIR USE Act

United States Code

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