Reps. Boucher and Doolittle Introduce the FAIR USE Act of 2007 (February 27, 2007)

DATE: February 27, 2007                       Reps. Boucher and Doolittle Introduce the FAIR USE Act of 2007 Legislation Would Protect the Fair Use Rights of Digital Media Consumers U.S. Representatives Rick Boucher (D-VA) and John Doolittle (R-CA), today introduced the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act) 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 legislation contains several improvements to the Digital Media Consumer's Rights Act, similar legislation which the lawmakers introduced in the 108th and 109th Congresses.  Congresswoman Zoe Lofgren (D-CA) is an original cosponsor of the legislation. Because the fair use rights of consumers of digital media are severely threatened today, Boucher and Doolittle propose amending a 1998 law, the Digital Millennium Copyright Act, which was enacted at the behest of motion picture studios, the recording industry, and book publishers. "The fair use doctrine is threatened today as never before.  Historically, the nation's copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material.  The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use," Boucher said.  "The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work," Boucher explained.  "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," Boucher added. "America can and must be a world leader in technological innovation," said Doolittle.  "This objective is hindered by the provisions in the DMCA that discourage the free flow of ideas and information.  The FAIR USE Act removes those disincentives, and I look forward to seeing the benefits that will ensue."  The FAIR USE Act differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively, by Representatives Boucher and Doolittle. In an effort to address the concerns expressed by content owners, the FAIR USE Act does not contain provisions which would have established a fair use defense to the act of circumvention.    The legislation instead contains specific exemptions to section 1201 of the Digital Millennium Copyright Act which do not pose a comparable potential threat to their business models. For example, the proposed legislation would codify the decision by the Register of Copyrights, as affirmed in a determination made by the Librarian of Congress under section 1201(a)(1) of the DMCA, to allow consumers to "circumvent" digital locks in six discrete areas. The bill also contains narrowly crafted additional exemptions that are a natural extension of these exemptions. Other new elements of bill include limiting the availability of statutory damages against individuals and firms who may be found to have engaged in contributory infringement, inducement of infringement, vicarious liability or other indirect infringement.  A more narrowly crafted provision codifying the Supreme Court's Betamax decision to eliminate any uncertainty about a potential negative impact on the Supreme Court's holding in the Grokster case is also contained in the legislation. Finally, given the central role that libraries and archives play in our society in ensuring free speech and continuing access to creative works, the bill includes a provision to ensure that they can circumvent a digital lock to preserve or secure a copy of a work or replace a copy that is damaged, deteriorating, lost, or stolen.  "I look forward to working with my colleagues and all interested parties in an effort to properly balance the rights of content owners, consumers and other constructive users of content. I will welcome their suggestions about how the measure might be further improved as it moves forward in the legislative process," Boucher concluded. "As a consumer, I am excited about the possibilities that the FAIR USE Act brings," stated Doolittle. Supporters of the FAIR USE Act include the Consumer Electronics Association, the American Library Association, the American Association of Law Libraries, the Association of Research Libraries, the Special Libraries Association, the Home Recording Rights Coalition, the Computer & Communications Industry Association, and other organizations representing the public interest and the consumers of digital media. -30-