Fair use bill hearing may move to US Congress

Advocates from both sides of the issue on whether the US Digital Millennium Copyright Act (DMCA) tramples consumer rights have...

Advocates from both sides of the issue on whether the US Digital Millennium Copyright Act (DMCA) tramples consumer rights have predicted that a bill protecting so-called "fair use" rights will be heard at the US Congress.

With the support of senator Joe Barton, 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, predicted 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 staff at a Congressional Internet Caucus event. The DMCA outlawed 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 Rich Boucher argued the DMCA went 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 said. "We are quite confident [Boucher's bill] will pass. It may be now, it may be later."

With Barton's support, the Boucher bill could find some traction in congress, added David Green, vice-president and counsel for the Motion Picture Association of America, which opposes the proposed change to the DMCA. Green said he hoped debates such as this one will convince lawmakers that the Boucher bill is unnecessary.

Boucher's bill would "put a hole in the ship", 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 said.

But Petricone and Fred von Lohmann, senior intellectual property lawyer for the Electronic Frontier Foundation, argued that the DMCA turned 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 suppliers from introducing new products, von Lohmann said.

"Federal laws should strive to not do more harm than good," von Lohmann added. "[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, noted that the DMCA allows exemptions for activities such as research, and the US 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 said. Boucher's bill "statutorily creates an excuse for infringement"..

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

Grant Gross writes for IDG News Service

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