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Another attempt at DMCA reform - sort of

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 of view.

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.

Index entries for this article
SecurityEncryption/DMCA


to post comments

Another attempt at DMCA reform - sort of

Posted Mar 1, 2007 6:25 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]

Bills are almost always amended before they become final. We can support the bill provided that a simple amendment is passed:

s/hardware/hardware or software/

Off topic

Posted Mar 1, 2007 9:35 UTC (Thu) by PhilHannent (guest, #1241) [Link] (4 responses)

"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."

/rant on

I am glad I am not the only one, also I see no reason to be forced to watch a copyright notice (often there are two) on a DVD I have purchased. Surely if a pirate was ripping the DVD he would just chop out these parts?

If I were in the U.S. could I sue for all those lost thirty seconds? They must surely be adding up by now?

/rant off

Off topic

Posted Mar 1, 2007 15:23 UTC (Thu) by mightyduck (guest, #23760) [Link] (1 responses)

What is personally objectionable is a matter of taste and not a matter of
law. I, for instance, find pr0n not at all objectionable but I highly
object to truck and SUV commercials. So, if it's legal to skip
objectionable content, it should be perfectly legal to skip commercials.

But, IANAL.

Off topic

Posted Mar 2, 2007 1:52 UTC (Fri) by giraffedata (guest, #1954) [Link]

You may have misunderstood the reference to skipping commercials in the article. The proposed law doesn't say that skipping commercials is still illegal because they are not personally objectionable. It says DeCSS is still illegal because it can be used for things other than skipping commercials -- for example, copying a movie for a friend.

BTW that "copyright notice" -- the one in which the fast forward button is disabled -- isn't even a copyright notice. It is just a warning about copyright law. And it irritates me more than I can say. Mainly because of the idiocy it represents -- that someone somewhere believes forcing everyone to sit through the warning will reduce copying.

I would pay a lot of money for a DVD player that has a "play the damn movie" button, skipping the previews, warnings, disclaimers, menus, wipes, and logos. It isn't yet worth the labor to build one, but I'm getting there.

Copyright notices

Posted Mar 3, 2007 0:01 UTC (Sat) by ldo (guest, #40946) [Link]

...also I see no reason to be forced to watch a copyright notice (often there are two) on a DVD I have purchased.

On my Pioneer DVD video recorder with hard drive, I switch from DVD to HDD mode as soon as the copyright notice comes up. Then when I switch back to DVD mode, I can usually go straight to the disc menu without the notice appearing. Works with most discs. :)

Off topic

Posted Mar 8, 2007 9:26 UTC (Thu) by niner (subscriber, #26151) [Link]

If you don't want to watch it - then don't do it. That's what great software like mplayer enables you to do.

I was very irritated when I was at a friend's and we had to wait 10 minutes for crap to play before the actual movie started. I really don't understand, why people go along with this.

Another attempt at DMCA reform - sort of

Posted Mar 2, 2007 1:57 UTC (Fri) by giraffedata (guest, #1954) [Link]

I wonder how they can distinguish hardware from software. I've been saying for years that most of the distinction people make today in an illusion.

Technically, a Debian CD is hardware. Am I covered by this exemption for creating and distributing Debian CDs? What about a DVD player that does what it does only because of program code in a ROM chip inside it?


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