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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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May 10, 2004

Fair Use Gets Fair Play on Capitol Hill

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This Wednesday, May 12th, marks the first time since the DMCA was enacted in 1998 that Congress will hold hearings on legislation to reform it.

The Digital Media Consumers' Rights Act, or DMCRA, has three important goals:

#1: Warning: You're About to Pay Full Price for a Hobbled CD

The DMCRA would require labels on copy-protected "CDs," letting us know that we can't actually use what we've purchased except under limited circumstances. That's right -- you get advance warning that you're paying the same price for less functionality.

#2: You Get to Reclaim Fair Uses of Digital Media That You Already Have in Analog Media

The DMC_R_A would put the Rights back in the DMCA. The bill amends the DMCA to allow you to circumvent copyright controls on digital media for legitimate purposes -- for example, to make the fair uses that copyright law ordinarily and traditionally allows.

Among other things, this would mean that:

a.) when most scholarly communication, publishing, instruction etc., takes place using digital media/online, our ability to share knowledge and learn from one another won't be a distant and fast-fading memory;
b.) when researchers want to "tinker" to advance our scientific knowledge, they won't face a significant barrier -- like the repeated threat of litigation; and
c.) when librarians seek to preserve our history in digital media, they won't have to wait three years at a time to beg the Copyright Office for the narrowly defined technical ability to do so.

#3: These Will Be Real, Not Phantom/Illusory Fair Use Rights

The DMCRA would affirmatively allow the creation/distribution of devices that circumvent copyright controls, when the devices have substantial non-infringing uses. That means inventors will be able to invent the next VCR or TiVo without asking Hollywood's permission first. And if a researcher has created a circumvention tool for the purposes of researching/testing web-filtering mechanisms, the researcher won't be limited to describing the controversial results. He or she could share the tool with the scholarly community.

There are a few other hot spots for discussion of this bill; check them out, and if you decide that you want Congress to consider the public's rights in digital media, let your representatives know you support it.

Comments (5) + TrackBacks (0) | Category: Laws and Regulations


1. Seth Finkelstein on May 10, 2004 3:28 PM writes...

"And if a researcher has created ..."

*cough* ... *cough* ... that's "has created" in *my* case, err, situation - "wants to create" in *his* situation, err, case.

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2. Seth Finkelstein on May 10, 2004 3:44 PM writes...

Note that for censorware research, the DMCA isn't the only threat, it's just the worst threat.

The Cyberpatrol censorware lawsuit ($75,000 damages claimed, a pittance by RIAA standards) had no DMCA aspect - it was pre-DMCA copyright, trade secret, shrinkwrap license, etc.

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3. cypherpunk on May 10, 2004 6:01 PM writes...

You left off the most important and far-reaching provision of the bill:

"(5) It shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work."

Wouldn't this essentially legalize the sale and distribution of every soft of infringing product, since any such device would inherently also enable significant noninfringing use? For example, a commercial version of a DVD deencryptor would be legal, since it would also allow you to publish excerpts for fair use commentary?

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4. Kim Weatherall on May 10, 2004 6:04 PM writes...

Hey, watch it, United States. It may not be signed, sealed and delivered yet - but if you're thinking of adding, for example, exceptions to the DMCA anti-circumvention provisions, you might want to read the Australia-US Free Trade Agreement, chapter 17. You'll have to review your new exceptions in 4 years, and you can only add exceptions to the ban on use, not the ban on distribution: Article 17.4.7.

Oh, and even though the US-Australia FTA isn't signed yet, I think you'll find you already have a free trade agreement with Singapore which limits your ability to add new exceptions to anti-circumvention provisions.

That's what comes from putting IP in trade deals - the obligations go both ways: just as Australia gets locked into your law circa 2003 - so does the US...

Permalink to Comment

5. Augustine on July 6, 2004 2:18 AM writes...

Don't forget about security.

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