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
There are some steps in the right direction. One bit of text added to the
DMCA by the FAIR USE act would be:
CERTAIN HARDWARE DEVICES.--No person shall be liable for copyright
infringement based on the design, manufacture, or distribution of
a hardware device that is capable of substantial, commercially
significant noninfringing use.
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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