Media Wonk

Boucher tries to circumvent trouble - February 27, 2007

Perhaps the third time will be the charm for Congressman Rick Boucher (D-VA) and his bill to “protect fair use” in the digital age.

Having failed to gain traction in the 108^th and 109^th Congresses, Boucher and Rep. John Doolittle (R-CA) re-introduced their measure on Tuesday as the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007, or FAIR USE Act, which they describe as an effort to “protect the fair use rights of users of copyrighted material and thereby enable consumers of digital media to use it in ways that enhance their personal convenience.”

The bill would amend the Digital Millennium Copyright Act, which Boucher and other critics say has tipped the balance of copyright law too heavily in favor of copyright owners at the expense of the legitimate rights of users of copyrighted works.

“The fair use doctrine is threatened today as never before,” Boucher said in introducing his bill. “Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market.”

In an indication that Boucher himself thinks the bill might actually go somewhere this time, the latest version incorporates some significant changes from the earlier efforts, which appear aimed at defusing the most obvious objections to the measure and perhaps attracting enough support to get out of committee.

Call it the difference between being in the minority, as Boucher was in 108^th and 109^th, when you’re mostly just laying down markers, and being in the majority, when you’re expected actually to accomplish things.

Among the tweaks, the new version would not create an explicit fair-use defense to a charge of circumventing access control technologies, a change Boucher and Doolittle concede is meant to address “concerns expressed by content owners.”

Instead, the bill would codify the six exemptions to the DMCA’s anti-circumvention provision recently carved out in a rulemaking by the Librarian of Congress, while adding a few other narrow exemptions described as a “natural extension” of the LOC findings.

The new bill also narrows the codification of the Supreme Court’s Betamax decision included in earlier versions to “eliminate any uncertainty about a potential negative impact on the [court’s] holding in the Grokster case.”

Whether those limits on the bill’s scope will enough to keep the MPAA and others from trying to kill it remains to be seen. As does whether Boucher has already conceded too much to keep supporters of a more radical overhaul of the DMCA on board.

Both sides offered some praise for the Librarian’s ruling at the time it was issued, albeit for different reasons.

Proponents of fair use were encouraged that the Copyright Office, for the first time, acknowledged the need for exemptions. The studios were happy the exemptions didn’t go “too far,” maintained that the process proved the DMCA is working as planned and did not need major surgery.

That may not be the firmest of common ground, but it seems to be where Boucher and Doolittle are pitching their tent.

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