Rep. Rick Boucher Reintroduces DMCA Reform Measure In Congress
Marking the beginning of what will likely be a contentious debate over digital copyright reform in Congress, Rep. Rick Boucher (D-Va.) has introduced a bill to amend the Digital Millennium Copyright Act (“DMCA”) by removing liability for certain “fair uses” of digital media.
The proposal, known as the Digital Media Consumer’s Rights Act, is identical to the measure Boucher introduced in the last Congress. Boucher’s proposal seeks to revise the anti-circumvention provisions of the DMCA to reaffirm the application of the copyright “fair use” doctrine to digital media. The bill would also amend the Federal Trade Commission (FTC) Act to require copy-protected discs to be explicitly labeled as such before being sold to the public.
The fair use doctrine allows consumers to make incidental copies of copyrighted works without obtaining the prior consent of copyright owners. However, with limited exceptions, the DMCA prohibits any attempt to circumvent copy control technology without the consent of the copyright owner. Because the law does not limit its application to circumvention that actually infringes a copyright, all types of traditionally permissible activities (e.g., fair uses) are at risk.
There are three main components to the DMCA reforms in Boucher’s proposal. First, the bill reaffirms that the fair use standard applies to digital works. Specifically, the bill would clarify that it is not a copyright violation to circumvent a technological measure to gain access to a work if the circumvention allows a legitimate fair use of the copyrighted material.
Second, the bill reestablishes the so-called “Betamax” standard as applied to digital technology. This would clarify that it is not a violation of the DMCA’s anti-circumvention provisions to manufacture, distribute or make non-infringing use of hardware or software that is capable of enabling significant non-infringing use of a copyrighted work.
Third, the measure would amend the DMCA to explicitly permit scientific research into technological protection measures. This proposed change addresses a significant ambiguity in the DMCA, which was brought to light last year when an academic was faced with a potential DMCA lawsuit for releasing a study showing that certain copy protection technology could be circumvented.
Aside from the DMCA revisions, Rep. Boucher’s proposed legislation would also require producers of compact discs to clearly label any copy-protected CDs that are sold to the public. Failure to properly label a copy-protected CD would constitute an unfair and deceptive practice under the FTC’s consumer protection laws.
Boucher’s bill was co-sponsored by four other House members and is supported by a significant number of companies in the communications and consumer electronics fields. It will face strong opposition from the film and recording industries, however, and will undoubtedly compete with other bills that aim to strengthen content owners’ rights to control digital media. Most notably, Rep. Howard Berman and Senator Fritz Hollings introduced bills last year that would dramatically expand copyright owners’ ability to exert control over digital content. Although neither of these bills has yet been introduced in the 108th Congress, we expect that these or similar proposals will be forthcoming.
If you need additional details about this bill or the DMCA generally, please contact us.