House Bill Seeks to Exempt Backups from DMCA Violation

By Scott M. Fulton, III, BetaNews

February 27, 2007, 6:40 PM

UPDATED with new information 9:45 am February 28, 2007

In an announcement Tuesday afternoon prior to the publication of the bill by the Library of Congress, Reps. Rick Boucher (D - VA) and John Doolittle (R - CA) introduced a bill that apparently would grant a new exemption for private, non-commercial copies of digital content, from violation of the Digital Millennium Copyright Act - technically creating a new class of "Section 1201 exemptions."

"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," reads a prepared statement from Rep. Boucher's office. With a seasoned lawmaker's skill at creating acronyms, the statement continues, "The FAIR USE Act [Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007] 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."

On Wednesday, we learned the new bill would be assigned the same number as a previous bill sponsored by Boucher in the 109th Congress, that ended up going nowhere. So the "Boucher Bill" is still H.R. 1201 - ironically, the same number as the section of US code that the DMCA supplements. (Never let it be said that Congress is immune from numerological superstitions.)

There will likely be other purposes for the new H.R. 1201, as evidenced by its title's reference to "entrepreneurship" -- we'll probably know more later Wednesday when the text of the introductory language is likely to be published. Boucher's office's statement acknowledges that the FAIR USE Act as introduced will differ substantively from the previous H.R. 1201.

But last year's bill's main purpose was to establish a labeling system for warning consumers when a compact disc includes copy protection. The Librarian of Congress has since allowed a 1201 exemption for copy protection circumvention in audio CDs, rendering another section of the old H.R. 1201 redundant.

More likely than Boucher's staffers may be aware, the FAIR USE Act is more likely to re-introduce language from another bill which stalled in the 109th Congress, introduced in December 2005 by Rep. Zoe Lofgren (D - CA) - a co-sponsor of the new bill. That previous legislation would have amended US Code Section 1201 with this language:

"It is not an infringement of copyright for a person who lawfully obtains a copy or phonorecord of a digital work, or who lawfully receives a transmission of a digital work, to reproduce, store, adapt, or access the digital work: (1) for archival purposes, if all such archival copies are destroyed or rendered permanently inaccessible in the event that continued possession of the work should cease to be rightful; and (2) in order to perform or display the work, or an adaptation of the work, on a digital media device, if the work is not so performed or displayed publicly."

But Boucher's statement today also said the new bill would not establish a "fair use defense to the act of circumvention," which would have given consumers a legal shield in case of lawsuits. Instead, the new language will define "circumvention" as the bypassing of digital locks. It apparently will not make illegal the use of such digital locks - for instance, the multitude of keys cryptographically generated by AACS.

As lawmakers argued during prior debates, circumventing copy protection schemes is not a right that the law can guarantee. Apparently this new legislation recognizes that as a fact, and is adopting a new strategy that simply pares down the DMCA. Content producers would not be able to claim copyright infringement in lawsuits against alleged copy protection violators; whether they will remain capable of claiming they contribute to piracy - and would then be liable for damages - remains to be seen.

Consumer Electronics Association president and CEO Gary Shapiro voiced his support for the new bill Tuesday afternoon. In a prepared statement, Shapiro said, "This bill will reinforce the historical fair use protections of constitutionally-mandated copyright law that are reflected in the Digital Millennium Copyright Act. It ensures that consumers, libraries and educators will not be liable for otherwise legal conduct and it codifies the important principles of the Supreme Court's Betamax decision. H.R. 1201 provides much needed fair use protection at a time when some in the content industry are challenging consumer rights to make use of lawfully acquired content."