Boucher Re-Introduces Fair Use Bill…Again
Representative Rick Boucher, Democrat from Virgina, has introduced a bill that would expand the protection of fair use under copyright law. This is the third time in as many Congressional sessions that the good representative has introduced a Fair Use bill. You just can’t keep a good man down!
Like the other bills he introduced over the last four years, the new bill could protect many companies and consumers from copyright infringement liability for trying to get around technology that protects a copyrighted work in order to access or use that work. As in the past, the Recording Industry Association of America (RIAA), the National Music Publishers’ Assn. and other copyright holders oppose the bill, saying that it would essentially get rid of current copyright protections. Under the Digital Millennium Copyright Act (DMCA), circumventing any technology used to protect copyrighted work from being illegally copied or used is illegal. The Consumer Electronics Assn. and others support the bill, saying that the DMCA provisions are too subjective and inhibit innovation.
While trade groups are certainly expected to lobby for or against the bill, many Washington insiders say that introduction of this bill is a minor event. In fact, the number of co-sponsors for the bill, which music industry lobbyists call “the Boucher bill,” has fallen over the years from 24 to 2. As in the past, trade group representatives believe Boucher will have a difficult time moving the bill forward.
Boucher first introduced this fair-use provision when the 108th Congress convened in January 2003. It was part of H.R. 107, called the Digital Consumers’ Media Rights Act of 2003. Like the current bill, the first version called for permitting anyone to “circumvent a technological measure” that was used to limit access to, or use of, a copyrighted work if the circumvention didn’t result in an infringement of the copyrighted work.
Also, the so-called fair use bill would protect anyone who made or distributed hardware or software from being liable for copyright infringement if the product was “capable of substantial noninfringing uses.” This was a key phrase used by the U.S. Supreme Court in the 1984 Sony Betamax case, which set out standards for determining when a company that made or sold equipment used for copying copyrighted works could be held liable for so-called secondary liability.
In May 2004, more than one year after the first bill was introduced, the House Subcommittee on Commerce, Trade and Consumer Protection held a hearing to explore the connection between technology and fair-use issues. Later, even though there were 24 co-sponsors, the bill died in the Subcommittee.
Boucher re-introduced the bill in March 2005 in the 109th Congress. Again called the Digital Consumers’ Media Rights Act (H.R. 1201), co-sponsors dropped from 24 to 13. No hearings were ever held, and the bill never made it out of the Subcommittee.
Now Boucher is trying again, although with only two co-sponsors so far. Still numbered H.R. 1201, the bill has a new name: Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007. It was introduced in the 110th Congress on Feb. 27, co-sponsored by John Doolittle, R-Calif., and Zoe Lofgren, D-Calif.
The new bill includes the same provisions as before, except they are spelled out in more detail. It also includes a new provision, attempting to limit the amount of damages that companies found liable for “secondary infringement” could be required to pay. Secondary infringement is the type of infringement alleged against companies like the original Napster, Grokster, Sharman Networks (maker of Kazaa), StreamCast (maker of Morpheus) and others.
