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Monday, March 12, 2007


Fairest Of Them All?

Ah, those Americans. They know how to create fantastic abbreviations that really illustrate the point of legislation introduced into Congress. What does the 'USA PATRIOT' in USA PATRIOT Act stand for? You can tell just from that abbreviation that the Act will be about strengthening America (it is, take a look at the Wikipedia page on it.)

So when I saw that the FAIR USE Act of 2007, still at Bill stage, had been introduced into Congress, I knew it was something to do with copyright. And because it was about copyright, I knew that I should get blogging on it.

I do know, however, that not everyone who reads this blog is a lawyer, or familiar with the American legal doctrine of fair use. So let's recap, shall we...

What is fair use? Fair use is a United States legal doctrine that permits certain usage of copyright material, without requiring the user to go seek the permission of the copyright owner. It's been invoked in a number of cases; probably the most famous was the Betamax case where the US Supreme Court held that the taping of TV shows was a fair use. Basically, it's a non-specific doctrine that a lot of otherwise copyright-infringing activities will be caught under. Given that Australia has specific exceptions, it's broader than any permission we enjoy.

What's the FAIR USE Act then? "FAIR USE" in this context stands for the Freedom and Innovation Revitalising U.S. Entrepreneurship Act. You can find it here on the Electronic Frontier Foundation's "Support the FAIR USE Act" page.

Huh? Precisely. A few years ago, the United States Congress introduced the Digital Millennium Copyright Act (DMCA). This Act introduced new provisions regarding the circumvention of technological protection measures (unauthorised keys to digital locks, basically). Under this legislation, a lot of unfair cases emerged. Even though it was supposed to be aimed at copyright infringement, it was used in cases where the plaintiff sought to protect garage door openers and printer cartridges.

And that's what the FAIR USE Act seeks to address? In part, yes. This Bill aims to rectify some of the problems caused by the provisions of the DMCA. A few years on and the community has now seen the impact of these sections on fair use of copyright material. The FAIR USE Act seeks to regain the "balance" of owner and user rights by introducing a number of changes:

1) new sections aimed at limiting damages for secondary liability for copyright infringement

2) expressly codifying (ie, putting into statute) the finding of the Court in the Betamax decision - people won't be liable for copyright infringement "based on the design, manufacture or distribution of a hardware device that is capable of substantial, commercially significant non-infringing use."

3) DMCA amendments - there are a few here:

First, the Bill includes reference to the six classes of "non-infringing uses"
specified by the Librarian of Congress. These uses would permit behaviour that
would normally have violated section 1201(a)(1)(A) of the DMCA, which states
that "no person shall circumvent a technological measure that effectively
controls access to a work protected under this title." On 27 November 2006 the
Librarian of Congress announced that these six classes would not be subject to
the prohibition against circumvention in s 1201(a)(1)(A) for three years. Find
out more here.

Second, the Bill also specifies a number of additional, non-infringing acts of
circumvention. My favourite is the section that will make an act of
circumvention legal where it is "carried out solely for the purpose of gaining
access to one or more works in the public domain that are included in a
compilation consisting primarily of works in the public domain." Admittedly,
this provision is somewhat narrow in its scope, but it does address the issue of
TPMs attached to works that are either in the public domain or enter the public
domain and become unusable due to their digital lock.

When will the Bill be passed? The Bill was introduced into Congress on 27 February 2007, by Rick Boucher and John Doolittle (don't you just really want to go to Virginia after seeing Boucher's site?). Zoe Lofgren is also an original co-sponsor of the Bill. See the Boucher press release here. Doolitle and Lofgren also shared responsibility for the introduction of the still-to-be-passed Public Domain Enhancement Act to the United States Congress following the Eldred v Ashcroft decision.

Americans must be rejoicing! Some are, some aren't. The Recording Industry Association of America has come out against the FAIR USE Act, arguing that it would "legalise hacking" and "would effectively repeal the DMCA." See more of their criticisms here.

I live in Australia. Why's this relevant? Because we just introduced our very own Oz-DMCA. Didn't you read Weatherall's Law? Pursuant to the provisions of the Australia-United States Free Trade Agreement, Australia was obliged to enact TPM provisions substantially similar to the sections of the DMCA. These were formally introduced as part of the Copyright Amendment Act. So it's time we all start drafting legislation in an attempt to convince our legislature to amend these provisions.

My contribution? Building on the American model, I propose the iPODS Act - the Interactive Products for Open Digital Sources Act. I am unsure what this would propose, but I wanted to use the word "iPod" in my Act title.


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