Fair Use Bill Introduced To Change DMCA

An anonymous reader tips us to a Washington Post blogger's note that Representatives Boucher (D-VA) and Dolittle (R-CA) today introduced the FAIR USE Act to update the DMCA to "make it easier for digital media consumers to use the content they buy." Boucher's statement on the bill says, "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..." The Post failed to note the history. Boucher has been introducing this bill for years; here are attempts from 2002 and 2003. The chances may be better in this Congress. And reader Rolling maul writes in to note Ars's disappointment with the bill for leaving the DMCA's anti-circumvention provisions intact: "Yet again, the bill does not appear to deliver on what most observers want: clear protection for making personal use copies of encrypted materials. There is no allowance for consumers to make backups of DVDs, to strip encryption from music purchased online so that it can be played anywhere, or to generally do any of the things that the DMCA has made illegal."

Comments

Why is encryption even covered by the DMCA?

[carrus85]

I've always wondered this. The current DMCA, AFAIK, makes breaking encryption a questionable prospect, at best (unless you have permission from the encryption designers). Why should this even be protected? Shouldn't we just encourage people to use stronger encryption that isn't as easily circumvented (in effect, why are we legislating that the use of "weak" encryption is okay)?

Personally, I think the encryption itself should be the deterrent to the circumvention of the encryption, not legislation.

If we can break the encryption, too bad; use something besides Fisher Price's "My First Encryption Algorithm" next time.

Re:Why is encryption even covered by the DMCA?

[QuasiEvil]

Why should this even be protected? Shouldn't we just encourage people to use stronger encryption that isn't as easily circumvented (in effect, why are we legislating that the use of "weak" encryption is okay)? Because that's not the fantasy that most folks want to believe. Most people think that security by obscurity is pretty good, and beyond that, they'll go to basic crypto. (I admit that SBO works in some cases in the physical world, but in the electronic world it doesn't stand a chance.) They want to believe that anything encrypted is protected.

Take a look at the retarded laws covering scanners and cellphones/cordless telephones. We could just tell people that these things are insecure and let the market handle it, or legislate the implementation of real security, or we could tell all the law-abiding folks to stop monitoring those frequencies and force equipment manufacturers to degrade performance across the spectrum to filter these particular frequencies. Meanwhile, anybody who really wants to can still come up with a receiver that will work in those bands... The public *wanted to believe* that their phone conversations were secure, so they made listening illegal rather than actually trying to make them secure (or letting the free market do it as a "feature"). Legislate to the fantasy, that's what we do today, because it makes people feel better even if they're worse off...

Illegal but unenforceable

[mangu]

it would be pleasant not to be a criminal for burning the DVDs I own for viewing on my PSP...

You could be a "criminal" under the law, but not under moral principles. As the ancient Romans said, "non omne licitum honestum", which is translated as "not everything that's legal is honest".

Apart from the basic principles of "fair use", I think lawmakers should restrain from creating unenforceable laws, because they weaken the whole principle of legitimacy of the state. Violating laws that restrict copying of digital works is ridiculously easy. Even if some people try to equate copying music and films to robbing banks, if it were as easy to rob a bank as it is to copy a DVD, I would think the whole business model of banking should be reviewed before creating stricter laws against bank robbery.

There's a great quotation by Robert Heinlein about this. In his 1965 novel "The Moon is a Harsh Mistress" his character Bernardo de la Paz said: "But I will accept any rules that you feel necessary to your freedom. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; If I find them too obnoxious, I break them. I am free because I know that I alone am responsible for everything I do." In digital works, this assertion is absolutely true everywhere. If the public does not accept the laws protecting "intellectual property", those laws will be broken.

Re:DVD backups

[mandelbr0t]

It's also true of any copyrighted work. Fair Use implies that an exception to the copyright law is being made because the particular infringement is not damaging to the copyright holder. This decision was left to the courts to make on a case-by-case basis until DMCA became law. Now you can't argue the Fair Use defense because you obviously broke a law to obtain the copy you're arguing Fair Use for. DMCA is so evil because it claims to uphold the Fair Use defense while finding a devious means to ensure that someone who makes such an argument is already guilty.