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Features: A New Bill for Digital Fair Use |
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Posted by Raul Ruiz on Wednesday, October 02 @ 19:49:28 EDT
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SiliconValley.com is reporting that Rep. Zoe Lofgren, D-CA, is planning to introduce the "Digital Choice and Freedom Act of 2002" in the House of Representatives. Congresswoman Lofgren's office was kind enough to send LawMeme a copy of the bill[PDF] to be introduced. As a public service, LawMeme analyzes the proposed piece of legislation.
Creating Digital Fair Use
The idea of digital fair use seems to have fallen along the wayside, be it by legislative intent or judicial misinterpretation. The Digital Choice and Freedom Act of 2002 (DCFA) seeks to rectify that problem. The bill would amend USC section 107 of title 17 to explicitly state that digital works are included in that section's fair use provision. Amending this section is important because section 107 details what factors should be considered in determining whether use or copying of a work is legitimate under fair use. As Justice Souter writes in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575, "[f]rom the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose, "[t]o promote the Progress of Science and useful Arts..." Copyright law has very limited provisions for promoting the progress of science and useful arts in the digital realm, primarily due to misapplication of current statues to digital situations.
The DCFA would also add section 123 to title 17 of the USC. Section 123 would state that it is not an infringement of copyright due to reproducing, storing, adapting, or accessing a digital work if a lawfully obtained digital work is used for archival purposes, i.e. backups provided that the archives are destroyed if the user discontinues possession of the copyrighted work. Furthermore, it is also not an infringement of copyright if the work is reproduced, stored, adapted, or accessed for the purpose of a non-public display or performance on a digital media device.
This amendment to title 17 is quite important. It would allow a person, for example, to transfer a legally acquired music file to his/her portable player without fear of copyright infringement. Furthermore, licensing terms that forbid this type of fair use would be invalid in a court of law.
Licensing Terms for Digital Media
Restrictive licenses in terms of fair use come under fire from this bill. The DCFA provides that terms of nonnegotiable licenses distributed with digital works will not be enforceable under any common law or State statues to the extent that they restrict or limit the end-user's rights outlined in the DCFA. The implications for this are vast. Business models that would attempt to extract more revenue by charging higher prices for licenses that allow digital media to be transferred to a portable device, for example, are essentially derailed. Microsoft's Digital Rights Management (DRM) system allows a content creator to restrict the transfer of media to a portable device. Under the DCFA, it would be legal if one were to transfer the media to a portable device even if the content creator expressly prohibited it via a license. Such a license would not be enforceable in a court of law and circumventing the access control mechanism that prohibits the transfer would be legal if for the purpose of fair use (outlined below as an amendment to the Digital Millennium Copyright Act).
The Digital First Sale Doctrine
DCFA introduces the concept of the digital first sale into section 109 of title 17. It states that if I were to purchase online a piece of copyrighted music and later decided that did not wish access to the copyrighted work, I would be able to sell the access to the work to a friend provided that I erased any copy of the work from my machine. The concept of a Digital First Sale is long overdue. Many current business models do not allow for the first sale doctrine to apply in cyberspace although they would apply in the real world. Suppose I purchased perpetual streaming rights to a music video. In the real world, this would be very much equivalent to purchasing a music video on VHS or DVD. The digital first sale doctrine would allow me to sell those rights to someone else provided that my access to the copyrighted work is terminated.
Amending the Digital Millennium Copyright Act
In the findings of Congress, listed in Section 2 of the proposed bill, it is found that "[t]he authors of the DMCA never intended to create such a dramatic shift in the balance [between copyright holders and consumers]... It is now necessary to restore the traditional balance between copyright holders and society... Copyright laws in the digital age must prevent and punish digital pirates without treating every consumer as one." The DCFA accomplishes this by amending section 1201 of title 17 (read as "DMCA") by explicitly stating that circumvention of access control mechanisms for digitally protected and copyrighted works is legal if the circumvention is for the purpose of making a non-infringing use of the legally obtained work as provided by the bill and if the copyright owner fails to make publicly available means to make such non-infringing uses. Moreover, any person may manufacture, import, offer to the public, provide, or otherwise make available means to circumvent these technological protections of copyrighted works if it is necessary to make a non-infringing use of the work, the means are designed, produced and marketed to make non-infringing uses, and the copyright owner fails to make available the necessary means to access digitally protected and copyrighted work for non-infringing purposes.
The wording in this section of the bill, however, must give us pause. The addition of a subsection into section 1201 of title 17 will include text such as "such act is necessary to make a non-infringing use of the work under this title..." (emphasis added). What exactly is "is necessary"? This type of language serves as a playground for judges to frolic in and should be clarified. Is it necessary for me to break the CSS encryption of a DVD in order to gain access to the protected work for the purpose of making a copy as a backup? If so, why can't I just place a video camera in front of the TV and record it that way? This same subsection may answer my question, "...the copyright owner fails to make publicly available the necessary means to make such non-infringing use without additional cost or burden to such person." Again I ask what cost or burden means? The bill defines terms such as "digital work" and "digital media device" but it fails to explain what would constitute a cost or a burden. If I own the video camera and have an ample supply of tapes, would that constitute a burden on my part?
I very much appreciate what this section is trying to accomplish. I believe it to be a healthy change to current law (though abolishing the DMCA in favor of something more, say, "constitutional" is what I would want). However, I believe that the current language is too vague and could be open to misinterpretation by the courts.
Conclusion
This bill's affirmation of fair use rights in the digital world is essential to repairing our outdated copyright system. It establishes digital doctrines born from analog counterparts. The Digital Choice and Freedom Act of 2002 forces companies to change their antiquated business models to adopt more technologically friendly ones. Fair use is essential in promoting the progress of science and the useful arts. The DCFA seeks to affirm that intent, the foundation of which is embodied in our constitution, by expanding traditional concepts of copyright into the virtual world. Although there is room for improvement in this bill, it certainly takes the correct step of re-opening this debate in the United States Congress.
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"User's Login" | Login/Create an Account | 6 comments |
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Like the Intent, Not So Happy with the Execution (Score: 1) by Ernest_Miller on Thursday, October 03 @ 00:31:58 EDT (User Info | Send a Message) http://research.yale.edu/lawmeme/ | Unfortunately, although the intentions are good, I believe the bill as written is seriously flawed. It has no chance of passing this term, so I'm not worried and I am happy it will be introduced, simply to help balance the current debate in Congress. However, I do have misgivings.
The main problem I have with the bill is that it emphasizes a difference between analog and digital copyright. The bill accepts the notion, propounded by Hollywood, that digital should be treated as fundamentally different than analog when it comes to copyright legislation. I reject this notion, and I believe that if it is accepted, Hollywood ultimately wins. They may not win everything, but the debate is definitely on their ground:
(5) The development of digital technology and the rise of the Internet have once again altered the balance [of copyright law]. On the one hand, digital technology threatens the rights of copyright holders. Perfect digital copies of songs and movies can be publicly transmitted, without authorization, to thousands of people at little to no cost. On the other hand, technological control measures give copyright holders the capacity to limit nonpublic performances and threaten society's interests in the free flow of ideas, information, and commerce.
Frankly, I'm not really sure that the balance has altered (except by legislation like the DMCA). After all, Hollywood has been screaming for mandated technological protection measures even for analog devices (i.e., attempting to kill or neuter Betamax). Even the DMCA itself includes provisions mandating the use of Macrovision on analog videotape players. So spare me the "digital is different" mantra.
I also claim that Hollywood simply hasn't taken advantage of the laws already on the books; like suing those it considers "pirates." They say it is too expensive, and I say, let copyright specialists sue on their behalf for contingency fees. I bet you see so many lawsuits, so fast, it wouldn't be funny. Of course, that would piss consumers off, but who cares about pissing off "thieves," right? In any case, you shouldn't be given new laws simply because using the old ones is not a good marketing move.
Copyright laws in the digital age must prevent and punish digital pirates without treating every consumer as one.
How about just taking the word "digital" out? Another problem is that the world is becoming increasingly digital. This bill crafts a Copyright Act riddled with special exceptions for digital files. Not too far in the future, everything is going to be digital. Shouldn't copyright law have a single norm, or are we going to be saddled with law crafted on the cusp of a transistion that treats different media different?
I could quibble with some of the other findings, but they are generally pretty good. However, there is a glaring omission. While the findings hold that the DMCA has been interpreted too broadly in preventing lawful users from circumventing technological control devices for lawful purposes, there is no statement about trafficking in such devices. After all, it does little good to have a right to circumvent if you can't get the tools. Later the bill does make exceptions to the trafficking provisions, but there should be a finding to buttress it.
As for the actual legislation itself, I'm not sure what is gained by adding "and by analog or digital transmissions," to the Fair Use section.
The proposed Section 123 is very disturbing to me. It seems to create an exception to the law for digital works, but at best just adds more exceptions to copyright law confusing the issue. At worst, a narrow reading of the statute could limit rights for "digital works."
The licensing provision is great.
The Digital First Sale doctrine seems good, but actually is a virtually unenforceable exception to copyright law. Furthermore, it again crea
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Re: A New Bill for Digital Fair Use (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Thursday, October 03 @ 12:15:35 EDT | Read well pages 8 and 9 "SEC. 5. PERMISSIBLE CIRCUMVENTION TO ENABLE FAIR USE AND CONSUMER EXPECTATIONS."
... any person may manufacture, import, offer to the public, provide, or otherwise make available technological means to circumvent a technological measure that effectively controls access to a work protected under this title or protects a right of a copyright holder under this 1
title, if—
(A) such means are necessary to make a noninfringing use ... and
(B) such means are designed, produced, and marketed to make a noninfringing use ... and
(C) the copyright owner fails to make available the necessary means....
Suppose I were, say, a Norwegian youth running a magazine called, say, 2600, and "offered to the public" some software that, say, allowed someone "technological means to circumvent a technological measure" protecting, say, a DVD. To do so without threat of legal action would be impossible under this bill. To defend myself, I would have to prove the software was a) necessary, b) designed for noninfringing use and c) that the copyright owner offered no substitute.
Each of these provisos is terrible.
A. What does it matter if it's "necessary" or not? Can I photocopy pages from a book in a library if it's unnecessary? Can I record a broadcast for some nondire non-need? More to the point, as a manufacturer/distributor etc., can I offer to the public a photocopier or VCR? After all, how is their use "necessary"?
By asking if it's "necessary", we subject such a "technological measure" to unreasonable scrutiny. Its very existence proves its usefulness. That should be sufficient reason for it to be permitted. To do otherwise is to question the motives of everyone involved, precisely what Hollywood is doing, and part of what the bill's authors are trying to undo.
B. As the author, distributor, whatever, I may be called to demonstrate, nay, prove that the "technological measure" was designed for noninfringing use. Proving the purpose of software that disclaims even merchantability is disingenuous, no? What I find convenient for my home network, someone else might turn into the next Napster, and I have to prove I didn't mean it?
C. This is the most insidious of all. Supposing the copyright author makes *some* means available. Does it matter if the means is buggy, inconvenient, doesn't run on my hardware or operating system? Does it matter if I have to provide personal information or agree to some sort of license? Does it matter if the means he provides imposes any restrictions, be they technical, legal, or practical? Does satisfying my curiosity count? After all, if what he provided met my requirements perfectly, I wouldn't have bothered to create an alternative, would I?
If I were Sony, I'd provide a DOS program that ran from a command line and -- when it didn't crash or mangle the output -- produced a far lower-quality file in a nonstandard format of my choosing. The playback software for that file would require the user to register an email address, to which I would send a time-limited key that he could type in, allowing a limited number of playbacks. Then I could say I had "[made] available the necessary means".
Bear in mind the power and wealth of the copyright holder, and his incentive to protect his franchise. Given the inequality of the resources of Hollywood studio and a human being (or even an ISP), such limited permission as granted above is no permission at all. The studio need only make the merest attempt to "make available the necessary means" (or, claim [A] that such means are not necessary), and claim adamantly that the purpose of the questionable software was subversive. The threat of a lawsuit would be sufficient in most instances to curtail or prevent distribution of "means" that the bill intends to protect. At best, it would protect Apple or Phillips from the RIAA. It certainly does not
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Re: A New Bill for Digital Fair Use (Score: 0) by Anonymous (Name Withheld on Advice of Counsel) on Friday, October 04 @ 17:35:15 EDT | A few thoughts, first on the concept of "perfect digital copies".
I have a quibble with the DCFA's wording in section 2. FINDINGS, paragraph (2), where it states “Perfect digital copies of songs and movies...”. This is an exaggeration that has been used by both the RIAA and MPAA to justify draconian copyright protection measures. They purposely confuse two different concepts: “digital copies” and “digital distribution”. The reality is:
(1) Digital copies are far from perfect
(2) The quality of a copy has little impact upon non-commercial copyright infringers
Take an example from ten years ago, the mandating of copy-protection on Digital-Audio-Tape recorders. The only people who cared about quality enough to be effected by the copy-protection measures were audiophiles (who, by the, way effectively killed the format because of the restrictions imposed by congress). The irony is that audiophiles were also the least likely people to make illegal copies; on the contrary, many purchase multiple versions of a single recording. The more typical non-commercial copyright infringement was young teenagers buying $50 boom-boxes with abysmal sounding cassette duplication. The quality of the duplication was of minimal importance (you can’t hear the poor quality on a $50 boom-box), as it had minimal impact on their decision to make illegal copies vs. buying legal copies.
I’d recommend striking the word “perfect”, and putting to rest the urban legend that digital copies are somehow different from other method of copying. This is not meant to diminish the importance of digital distribution, which obliviously has had an impact on non-commercial copyright infringement. Confusing “digital copies” with “digital distribution” is how we got lousy laws like the DMCA in the first place.
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So obviously I don't think digital and analog media should be treated differently, but is that a question we want to tackle now? There is a good reason to consider holding off on that contest.
Right now digital content is subject to more restrictions, after all the DMCA was based on the theroy (incorrect in my opinion) that any copy is an infringement by default. They apply that to computers (RAM memory, Video card memory, and hard drives and the like). But it fails the real world test (for exmaple under this theroy the image your glasses make as you read a book is also an infringing copy). We want to be really careful that analog media does not get the same restrictions now applied to digital media. This would be a major step backwards, even if it was under the somewhat relaxed restrictions in the DCFA.
The publishing industry is very busy trying to extend the current digital restrictions to cover analog media as well. That is part of the whole "analog hole" concept that they keep harping about. Ironically, the fact that they complain about the analog hole reveals their first arguments about digital being different were lies! What really happened was they used fake digital issues as a "wedge" to get special privileges, and are now trying to expand those privileges to cover everything.
As we are trying recover the rights lost to digital media, lets not accidentally loose the analog rights as well!
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