ARCHIVED: Reaffirm Fair Use-Cosponsors Needed for the Digital Media Consumers' Rights Act of 2003 (H.R. 107)

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BACKGROUND:
Rep. Rick Boucher (D-VA-9) and Rep. John Doolittle (R-CA-4) introduced the Digital Media Consumers' Rights Act of 2002 (DMCRA) last October to reaffirm fair use in the digital age. As promised, they reintroduced the DMCRA on January 7, 2003, with Rep. Spencer Bachus (R-AL-6) and Rep. Patrick Kennedy (D-RI-1) as additional cosponsors. The DMCRA of 2003 is identical to last year's bill and would restore the historic balance in copyright law by repealing key portions of the Digital Millennium Copyright Act of 1998.

The DMCRA was assigned bill number H.R. 107, which is entirely appropriate given that Sec. 107 is the "fair use" provision of the Copyright Act. The legislation was referred to the House Energy and Commerce Committee, where Chairman Billy Tauzin (R-LA-3) has promised to hold an early hearing.

AALL was one of a large and diverse coalition that applauded the introduction of the DMCRA last October. Other early supporters were Intel, the Philips Corporation, Verizon, Sun Microsystems, Gateway, the Consumer Electronics Association, the Home Recording Rights Coalition, the Computer and Communications Industry Association, the Association of American Universities, the national library associations, the Digital Future Coalition, the National Writers Union, the Consumers Union, the Electronic Frontier Foundation, Public Knowledge and the American Foundation for the Blind.

ACTION NEEDED:
Rep. Boucher and the other cosponsors of the DMCRA have asked AALL members for help in getting additional cosponsors for H.R. 107 so that by the time a hearing is held, there will be broad support for the bill within the House of Representatives. Please write and fax a letter to your representative right away, urging her/him to cosponsor this important legislation. The following talking points describe the provisions of the DMCRA:

First, Section 1201 of the 1998 Digital Millennium Copyright Act (DMCA) punishes any act of circumventing a technological protection measure that controls access to a copyrighted work, even if the act of circumvention is for a legitimate purpose. The Digital Media Consumers' Rights Act of 2003 (DMCRA) prohibits circumvention only when the purpose is to infringe the copyright of the work. It would not be a violation of federal law to bypass a technological measure as long as it does not lead to an infringement of copyright. For example, under the DMCRA, a user may circumvent an access control on an electronic book he/she purchased for the purpose of reading it on a different electronic reader.

Second, the DMCRA would specify that it is not a violation of Section 1201 of the DMCA to manufacture, distribute, or make non-infringing use of a hardware or software product capable of enabling significant non-infringing use of a copyrighted work. This change will allow manufacturers to continue to develop useful multi-purpose consumer electronics and computing devices, and will ensure that the public has access to technologies that allow them to make fair use of copyrighted works. For example, a blind person could develop a means to listen in audio form to an electronic book which had been purchased in text form.

Third, the DMCRA would permit researchers to produce the software tools necessary to carry out "scientific research into technological protection measures" and to distribute his or her code. The DMCA allows circumvention for encryption research only under specified circumstances and therefore has chilled scientific inquiry. Under the DMCRA, researchers and programmers could develop the tools necessary for such circumvention and publish their work.

And fourth, the DMCRA directs the Federal Trade Commission to do a rulemaking so that record companies must provide adequate notification to the consumer on any copy-protected CD. Such disclaimers are generally difficult to locate on the CD case and often do not state clearly that copies may not be made and that it will not play in various devices. Such notice must be obvious and easy to understand.

It is crucial that this proactive legislation, supported by a large and diverse group of organizations and companies, be given an open hearing in the U.S. Congress this year. Please assist AALL's efforts to get additional cosponsors for H.R. 107 as soon as possible.

Thank you very much,
Mary Alice Baish,
AALL Associate Washington Affairs Representative,
202-662-9202,
baish@law.georgetown.edu