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Any bill before Congress that attempts to clarify Fair Use and strike a balance between the rights of companies and consumers versus the holders of copyrighted material will be welcomed in the current climate.

The last thing you'll want is for the legal concept of "Fair Use" to be clarified by legislation. All it's going to do is open the door to microregulation of the software industry. Expect FCC2 (the Federal Copyright Commission) wanting to put their stamp of review on every piece of software that goes to market. In an effort to "protect" consumers and product developers from copyright infringement claims, they'll simply make it prohibitive for entrepreneurs to bring products to market quickly.

Look, every company that introduces a revolutionary product that moves data around in new ways (e.g. Slingbox, Napster, etc.) knows there is significant legal risk from things not being specified in concrete. But that's also what creates the opportunities for them in the first place. For a bill like this to have any chance of passing and not just being a flag waving exercise, there would have to be some concession to the copyright lobby, and the only thing they could imaginably concede legislatively is some sort of regulatory process. My bet is that they offer some kind of indemnity to companies that submit to a regulatory review process (and by extension, their customers), and if you're a little shop that can't afford the process, tough titty.

But hey, why not just ruin a fairly good thing because the rules aren't explicitly set out?

RIAA says,"The difference between hacking done for non-infringing purposes and hacking done to steal is impossible to determine and enforce". So why do they object?
You can't enforce it either way then FAIR USE should be the right of the consumer now shouldn't it. Any legislation that promotes FAIR USE is a good thing. It's about time the consumer gets some of its rights back. We've been accused of being crimminals for at least the last 3 years. I'm tired of the RIAA and the MPIA whinning about there lack of profits and accusing anyone and everyone including dead people of stealing!

Of course the RIAA doesn't want to exempt manufactures from what their customers do. Why? It would remove a possible revenue source when they file suit against the "infringer."

(Lest we not forget some of their more silly suits against alleged infringers)

"The difference between hacking done for non-infringing purposes and hacking done to steal is impossible to determine and enforce."

So, let's just assume that any hacking is to steal? So much for benefit of the doubt.

I hate to tell you but Fairuse has already been made irrelevant. First, Congress does not draft the Copyright Act, Lobbyists from differently effected industries do. The public does not even have a seat at the table.

Second, the DMCA pretty much stamped out Fairuse by making the circumvention of content protection a separate illegal act then copyright infringement. The industry now just has to argue that its content protection means has been illegally circumvented, and the issue of whether a copyright was violated never gets heard. Since, fairuse only applies to instances of copyright violation, and not the protection circumvention, the issue of fairuse is never argued.

For instance, Real once circumvented Apple's Fairplay. In doing so it likley violated copyright law by copying Apple's copyrighted DRM code. That is simply how reverse engineering of software works. Arguably Real's actions under traditional copyright law are fairuse because it did so to allow interoperability of products (which traditionally is allowed under fairuse). However, when this occured, Apple did not compain about its copyright being violated because it knows it is a losing argument under Fairuse. Instead, the DMCA was what was mentioned by Apple. You see Apple would have argued Real illegally circumvented a content protection scheme, which is an issue separate from copyright. If Apple would have went to court, Apple likely would have been succesful in shutting Real down without ever getting to the issue of copyright violation (there are quastionable arguments Real could have made, but they are untested and weak).

You'll also notice consumers never argue Fairuse, only companies do. It simply is too expensive for a customer to argue fairuse. In addition, Fairuse is a judge created doctrine. Congress, however, codified it in the copyright act using very specific examples.


Accordingly, I hate to admit it (as I normally dislike Republican initiatives) I like this proposed law. It protects companies like Apple by allowing them to engage in traditional activites such as reverse engineering which the DMCA has made very troublesome. For instance, if the DMCA was around when Sony came out with the BETA we would never have VCRs. Moreover, IBM would still be the only distributor of PCs because Compaq would not been able to reverse engineer its bios. Also, we would never have had that third party Sony Playstation emulator. The list goes on and on and on.

I highly recommend that anybody who cares about fairuse contact your congress person and tell them you support this legislation. Advocates of copyright law, including many prominent legal professors, have proclaimed that the DMCA killed Fairuse. This legislation would restore some of the balance.

There are a lot of great books on the topic:

here is a link to a good free one by a expert on the topic:

http://www.free-culture.cc/freeculture.pdf

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But hey, why not just ruin a fairly good thing because the rules aren't explicitly set out?

Guess what the concept of fairuse is already clarified by legislation. I am too lazy to look it up for you, but do a Google search.

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The last thing you'll want is for the legal concept of "Fair Use" to be clarified by legislation.

RIAA Opposes Bill Reinforcing "Fair Use"... they prefer unfair use instead.

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Terrin wrote:
Guess what the concept of fairuse is already clarified by legislation. I am too lazy to look it up for you, but do a Google search.

Terrin, the legislation in the United States (and the Berne Convention) is anything but clear, and purposefully so. Here's the statute:

http://www.copyright.gov/title17/92chap1.html#107

Notice it says nothing about ripping a CD into iTunes, copying it to your iPod, and transferring it to another computer on your LAN. This probably sounds really counterintuitive, but it is the vagueness of the Fair Use doctrine that has made it a useful defense against copyright infringement over the years. Copyright owners are usually reluctant to get into court battles that might expand the concept. Betamax taught a long lasting lesson.

Here is what the Copyright Office says about Fair Use. Note how vague it is and how it could not possibly cover sharing your Britney Spears album with 1,000,000 of your closest friends on eDonkey.

http://www.copyright.gov/fls/fl102.html

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Terrin wrote:
You'll also notice consumers never argue Fairuse, only companies do. It simply is too expensive for a customer to argue fairuse. In addition, Fairuse is a judge created doctrine. Congress, however, codified it in the copyright act using very specific examples.

WTF are you talking about? You don't have to argue "fair use" in court to utilize the right. Also, companies often end up arguing it on behalf of their customers. Think Betamax and Xerox. The fair use doctrine as it exists is probably the underpinnings of national copying outfits like Kinkos. And to call the legislated "examples" specific. Oh my...

… seems so unnecessary to use "WTF". It's so aggressive, don't you think?

John

I will concede your point that companies often argue fairuse on behalf of their customers. This, however, is because it is primarily in the companies interest (how else is Sony going to sell Betamaxs). Nothing wrong with that. Many companies, however, have to give up the fairuse defense because it is too expensive (which was my point). An example, is Connectix and its Sony Playstation emulator. Connectix used a classic fairuse defense, which was winning in the lower courts, but it ran out of money, and had to sell out to Sony, which of course killed the product. Consumers lost out. More importantly, this was a pre DMCA case. If the DMCA had been in place, Sony would have never even brought up Connextic's copyright violation to which fairuse was a defense. It would have merely argued Connectix was circumventing its content protection scheme (like it has numerous times since in killing third parties from making some of its products better, like its robot dog).

I also agree that § 107 is somewhat vague, but for different reasons than you. I think you are implying that Congress wanted it that way so fairuse can transform to the situation. Instead, Libraries had to fight to have § 107 included at all, COngress played no part in drafting the Copyright Act. The statute merely mirrors a four part judicial test in which courts apply the factors. It, however, gives some select examples of what the courts have found to be fairuse: Specifically, [copying] for purposes such as criticism, comment, news reporting, teaching, scholarship, or research." Notice it doesn't say anything about reverse engineering, a long time acceptable use of Fairuse that the media companies drafting the legislation oppose.


None of this is really relevant to my overall point, which is the DMCA effectively kills Fairuse which is the reason Sony and Xerox won in the cases you are vaguely referring. This is because companies no longer go into court arguing you violated their copyright. Instead, they go into court arguing you circumvented their protection scheme. Fairuse is not a defense to digital content circumvention, only to copyright infringement.

The proposed legislation does not alter § 107, anymore then the DMCA did. Instead, it merely has a positive effect on fairuse, where the DMCA essentially killed fairuse.

Accordingly, I do not understand your point that we do not need specific examples of fairuse to be codifed. Right now with the DMCA there is no fairuse. The proposed legislation removes some of the hurdles the DMCA put into place so that both companies and consumers can now enjoy some of the rights fairuse would have always allowed them (if the DMCA didn't come around). Maybe it is not a perfect solution, but at least it helps, and your loved § 107 isn't effected at all.

The mere fact the RIAA doesn't like it should tell you something.

Read Professor Litman's Digital Copyright book to get a history of how your copyright laws are really written.

A nice non technical article on the DMCA and Fairuse is

http://www.spectrum.ieee.org/jun06/3673

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Bosco wrote:

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Terrin wrote:
Guess what the concept of fairuse is already clarified by legislation. I am too lazy to look it up for you, but do a Google search.

Terrin, the legislation in the United States (and the Berne Convention) is anything but clear, and purposefully so. Here's the statute:

http://www.copyright.gov/title17/92chap1.html#107

Notice it says nothing about ripping a CD into iTunes, copying it to your iPod, and transferring it to another computer on your LAN. This probably sounds really counterintuitive, but it is the vagueness of the Fair Use doctrine that has made it a useful defense against copyright infringement over the years. Copyright owners are usually reluctant to get into court battles that might expand the concept. Betamax taught a long lasting lesson.

Here is what the Copyright Office says about Fair Use. Note how vague it is and how it could not possibly cover sharing your Britney Spears album with 1,000,000 of your closest friends on eDonkey.

http://www.copyright.gov/fls/fl102.html

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Terrin wrote:
You'll also notice consumers never argue Fairuse, only companies do. It simply is too expensive for a customer to argue fairuse. In addition, Fairuse is a judge created doctrine. Congress, however, codified it in the copyright act using very specific examples.

WTF are you talking about? You don't have to argue "fair use" in court to utilize the right. Also, companies often end up arguing it on behalf of their customers. Think Betamax and Xerox. The fair use doctrine as it exists is probably the underpinnings of national copying outfits like Kinkos. And to call the legislated "examples" specific. Oh my...

Actually, RIAA's argument is the exact opposite of the NRA. The NRA holds that gun manufacturers cannot be held accountable for the actions of consumers. This seems to be holding legally in our nation.

OTOH, the RIAA claims that backing up CD's is against fair use. Just as putting records on cassette tape was considered "fair use" so is ripping a CD into iTunes for my iPod and home jukebox. When I purchased the CD I obtained a liscense to play the music on that CD. I still have the CD, but I use other formats to move it around according to my lifestyle. This is fair use.

BUT, the RIAA wants to put CD's and DVD's in the same category. DVD's are protected by the DMCA, CD's are not as they have no copyright protection. I believe this legislation is good concerning DVD's because I believe a consumer should have the right to back up the physical media (or the media companies should be forced to offer replacement discs when media is damaged. HAHAHAHAHAHA! Never) to protect their investment. But concerning CD's, I totally reject the RIAA's contention that it is illegal or immoral for me to back up my music.

As others have noted above, the RIAA's equating of backing up with hacking is irrelevant straw man arguement.

David

Another FCC? Give me a break. How can you equate compliance with the public airwaves with compliance with fair use? Do you think these Republicans want to start yet another bureaucracy? Nothing that I've read so far even *hints* at such a suggestion. You are indeed paranoid. (Which of course does not mean that they are NOT out to get you! )

Just about anything the RIAA is opposed to, I'm for. People in other countries have the right to make archival copies for their own use. I envy that ability. The RIAA would prefer that you pay for everything over and over, each time their cheaply made disc fails, or for each different device out there.

The laws in this area have not kept up with the technology and now that the democrats control the Legislative branch, consumers MAY get a fair shake.