Another attempt at DMCA reform - sort of

The Electronic Frontier Foundation has sent out an action alert urging U.S. citizens to support the passage of the FAIR USE act [PDF]. This bill is congressman Rick Boucher's latest attempt to curb some of the worst excesses of the Digital Millennium Copyright Act. It may well be worth supporting, but this bill falls far short of what is really needed - especially from the free software community's point of view.

There are some steps in the right direction. One bit of text added to the DMCA by the FAIR USE act would be:

This is a legal codification of the "Betamax decision" which made it legal to sell videocassette recorders in the US. It makes obvious sense: just like knives and cars can be sold despite their obvious potential illegal uses, gadgets are legal even if somebody can do Something Bad with them. The text only applies to hardware, though; software gets no similar protection. And we have already seen how the "commercially significant" language can bite us; some courts have been happy to see free software as not being "commercially significant."

The bill puts limits on damages which can be imposed for "secondary infringement," which, again, should reduce worries for gadget makers who are afraid of being sued.

Finally, the bill would codify the exemptions to the DMCA's anti-circumvention provisions which have been approved by the Librarian of Congress to date. There are six of them, allowing for limited circumvention for classroom use, to get at obsolete software, to enable reading ebooks aloud, to bypass the SonyBMG CD rootkit, and a couple of others. In addition, the bill would create exemptions for those creating compilations of audiovisual works, skipping commercials or "personally objectionable content," transmitting content over a home network (sometimes), getting at public domain works, or performing research, criticism, or news reporting. In each case, the exemption is for people "solely" engaging in the exempt activity, so the law will not legalize DeCSS on the basis that it can be used to skip the leading commercials on DVDs - something your editor finds highly "personally objectionable."

More to the point, however: this bill does not make any fundamental changes to the anti-circumvention provisions of the DMCA. It would make the next Jon Johansen or Dmitry Sklyarov no safer in the U.S. Anybody writing free software which can be seen as a circumvention tool would be just as threatened by the DMCA after passage of this law as before. It is nice that, say, manufacturers of garage door openers would not be subject to silly lawsuits, and it is nice that some exemptions would be codified into law. Perhaps there is enough merit in those changes to make the FAIR USE act worth passing. But it is not a DMCA reform, it does not make it legal to distribute a free DVD player in the U.S., and it does not remove the legal threat against free software developers. That sort of reform, it seems, is not on the agenda this year.

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