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PRO-IP Act may get Fair Use trimmings after all - March 13, 2008

Congressman Rick Boucher (D-VA) indicated Thursday that a plan to attach some or all of his FAIR USE Act (HR 1201) to the PRO-IP Act are not completely dead. Speaking at a Media Institute luncheon in the shadow of Capitol Hill, Boucher said, "There are some discussions about advancing some parts or all of 1201 in conjunction with other IP measures, to do it as part of a package."

Last week, the House intellectual property committee passed the PRO-IP Act by voice vote without any additions. The bill--largely the brain child of NBC Universal general counsel Rick Cotton, who also chairs the Coalition Against Counterfeiting and Piracy (CACP)--is meant to reorient the priorities and resources of the Justice Department and other government law-enforcement agencies to focus more intently on intellectual property crimes. It also creates a chief IP officer within the White House to coordinate IP enforcement activities across various agencies.

At the time of the markup, it appeared that any plans to consider HR 1201 at the same time were off the table, so Boucher's comments Thursday to the contrary represents something of a change in the dynamic.

First introduced in 2004 but never getting past the subcommittee stage, HR 1201 is meant by its supporters to make the DMCA more fair-use friendly. Its most important--and controversial--provision would permit the circumvention of access control technologies used to protect copyrighted works if the purpose of the circumvention is to make fair use of the work. Currently the DMCA bans any circumvention, regardless of the purpose, except in certain narrowly defined circumstances carved out by the U.S. Copyright Office.

Content owners have fiercely opposed Boucher's bill since it was first introduced for fear that any general loophole in the anti-circumvention rule would open the door to piracy.

Should 1201 get attached to the PRO-IP Act, however, content owners would face a dilemma. While they broadly support the PRO-IP Act's enforcement agenda, the addition of HR 1201 could make the whole package unpalatable.

Even Boucher isn't sure it's such a great idea.

"I would be, I think, probably the most difficult bill we could consider this year because of all the controversy and opposition it would attract," he said Thursday. "I'm not even sure what I think of the idea yet. At this point, we're having discussions about a package but I haven't signed off on anything yet."

Boucher also used the occasion to offer a ringing defense of his defense of fair use.

"I am trying to preserve fair use," he said. "With the passage of the DMCA, the possibility of the complete abolition of fair use now exists. It gives companies that power to lock up their content forever and prevent anyone from accessing it in any way that they don't approve. And one thing I've learned in the quarter century I've spent [in Congress] is that power once granted will be used. I have no doubt that within a few years we'll see companies taking steps to effectively cut off all fair use, unless we change the law."

Changing it as part of a package with the PRO-IP Act, however, could provoke quite a Donny-brook.

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