Can we have fair use without fair use technology?; Ars Technica, 5/14/10

Matthew Lasar, Ars Technica; Can we have fair use without fair use technology?:

"Back in February of 2007, the Ars team was a bit miffed at what it saw as the half-hearted efforts of Rep. Rick Boucher (D-VA) to bolster fair use protections for consumers. Boucher had just introduced his Fair Use Act to the House, a bill that would provide additional protection for consumers following the Supreme Court's 2005 pile drive of the Grokster file-sharing service.

Boucher's legislation, cosponsored by John Doolittle (R-CA), offered a variety of new fair use exemptions to the Digital Millennium Copyright Act. These included making "a compilation of audiovisual works" for classroom use, transmitting files over a home network, and accessing various works "of substantial public interest solely for purposes of criticism, comment, news, reporting, scholarship, or research."

Unlike previous iterations of his proposed law, however, Boucher's latest version did not offer protections to the developers of tools designed to facilitate these salubrious activities.

"So if Boucher's legislation passed," Tim Lee lamented in a post published a day after the law's announcement, "a film studies professor would be permitted to use software such as Handbrake to circumvent the copy protection on DVDs and create an audiovisual presentation featuring scenes from various movies. However, developing or distributing Handbrake in the United States would still be a crime."

Now, three years later, the Public Knowledge advocacy group has a set of proposals that would address this strange shortcoming.

Substantial noninfringing use

PK has been especially busy with these matters of late, unveiling its proposed Copyright Reform Act in stages. Stage one urges an expansion of fair use concepts to the DMCA, including the incidental capture of images ("for example, capturing music playing over radio when filming a family moment") and "personal and noncommercial uses" that would have "little chance of harming copyright holders" (e.g., making a CD of your favorite cardio-pop tunes for the fitness center).

Now Public Knowledge's stage two addresses the "anticircumvention" trap embedded in Section 1201 of the DMCA, the first words of which read as so: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

PK would add a codicil to this text:

"It shall not be a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention is for the purpose of engaging in noninfringing use of a work."

Then the group's reforms address Section 1201 language forbidding anyone to make, offer or traffic any technology, product, or service that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title" and "has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title."

To these sentences PK would append the following:

"It shall not be a violation of this section to manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof capable of enabling substantial noninfringing use of a work protected under this title."

This, of course, lands us deep in the muck which is Supreme Court's Grokster decision, which ruled that the file-sharing service could find no safe harbor in the high court's 1984 Betamax standard. Betamax allowed that devices "capable of substantial noninfringing uses" could not be legally blamed for the infringing shenanigans of their users. But Grokster found that device distributors who sold services and technologies with the object of promoting their uses to infringe copyright were indeed liable for the consequences.

What we have in Public Knowledge's proposals, then, is a legislative attempt to address both the DMCA and Grokster's overreach, empowering devices capable of "enabling substantial noninfringing use of a work," while retaining the ruling's oversight over bad intent.

Teachers, regional DVDs, backups, time shares

Why does PK think that consumers need these reforms? Lots of reasons.

High on the group's first aid list are teachers who want to show films to their classes. They're hobbled by the law if they want to make film compilations from DVD media, a task that sometimes requires encryption circumvention technology. Thus, classroom instructors "must both worry about liability for the act of circumvention and manage in spite of the prohibition on tools that would allow them to circumvent," PK warns.

In other words, they have to navigate through a DVD's scene index, creating long and awkward breaks in their lectures. In 2006 the US Copyright Office granted a limited exemption on these restrictions for film and media studies professors, leaving historians, sociologists, anthropologists, ethnographers, and everybody else to fend for themselves.

Next, there are the roadblocks set up by the regional coding mechanisms stamped into many DVDs. On top of CSS used by most DVD makers, regional playback control is added, making their media usable only in a specific geographical area.

"Consumers' ability to make private use of legitimately purchased foreign DVDs on their DVD players in the United States is thus challenged regardless of whether they lawfully imported foreign DVDs themselves or legally purchased them from an overseas vendor," PK notes, "though both methods of acquisition are 'plainly legal' under copyright law."

Then there are the backup technologies that have been pummeled under the DMCA, such as RealDVD, a system that allowed consumers to store DVD content on their hard drives.

Eventually RealNetworks settled its fight with Hollywood, agreeing to fork over $4.5 million make the Motion Picture Association of America's infringement lawsuit go away.

But RealNetworks isn't always the defendant. Don't forget the time/format sharing Streambox VCR, which allowed users to record and play RealAudio streams. Real Networks sued Streambox for DMCA copyright infringement. Eventually the two companies settled.

Enacting these reforms "would remedy the unintended consequences caused by §1201's overbroad prohibitions while continuing to offer copyright owners extra protections for digital works guarded by TPMs [technology protection measures]," Public Knowledge's brief concludes.

Unfortunately, these suggestions are unlikely to ever darken the doors of Congress. Even Boucher's milquetoast fair use law didn't get very far; it was referred to the House Judiciary Committee, and then to the Subcommittee on Courts, the Internet, and Intellectual Property back in 2007. That was the last anyone heard of it."

http://arstechnica.com/tech-policy/news/2010/05/can-we-have-fair-use-without-fair-use-technology.ars