In previous versions of his bill, he tackled the issue very simply. He addressed the problem: although fair use is a limitation to the rest of copyright, its powers were useless against the anti-circumvention provisions of the DMCA; by adding an amendment that made it clear that Sect. 107's fair use applied.
If one can say there's a problem with that previous statutory language, it was the “problem” that many have with the statutory definition of fair use: it's wishy-washy. Of course, it's meant to be that way, but that's a hard point to argue in Congressional offices. The content industry, the same folks who bedeviled the VCR, said that Mr. Boucher's bill: 1. would legalize hacking; 2. would allow for mass piracy; and, 3. made no sense so long as we lived in a world where the technology to protect content while allowing fair use didn't exist. Unfortunately, those points had enough traction to prevent the bill in its two prior iterations from going anywhere.
This HR 1201 is different. Cleverly titled “Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007” to spell out the acronym “FAIR USE Act,” this HR 1201 focuses on a number of points that should be more difficult for the content industry to argue against, with a straight face, at least. If they're against it, the content industry will be required to take some rather inconvenient points of view.
Let's take a look at some specific DMCA “carve-outs” under HR 1201:
(i) an act of circumvention that is carried out solely for the purpose of making a compilation of portions of audiovisual works in the collection of a library or archives for educational use in a classroom by an instructor;
This DMCA limitation is very pinpointed, and similar to one newly granted by the Copyright Office itself during the DMCA exemption hearings. It's going to be hard for folks to argue against libraries, archives, or professors.
(ii) an act of circumvention that is carried out solely for the purpose of enabling a person to skip past or to avoid commercial or personally objectionable content in an audiovisual work;
This limitation is similar to one proposed and passed into law in 2005. This would put the limitation squarely in copyright law. It also puts the content industry in the unenviable position of saying that consumers shouldn't be able to fast-forward through commercials or objectionable content.
(iii) an act of circumvention that is carried out solely for the purpose of enabling a person to transmit a work over a home or personal network, except that this exemption does not apply to the circumvention of a technological measure to the extent that it prevents uploading of the work to the Internet for mass, indiscriminate redistribution;
A limitation for home and personal networking, expressly forbidding willy-nilly Internet distribution. The content industry is going to have to be creative when they tell consumers and legislators why they should have to buy specialized copies of their digital media for every device, when the content can be transfered easily in these limited environments, without the fear of piracy.
(iv) an act of circumvention that is carried out solely for the purpose of gaining access to one or more works in the public domain that are included in a compilation consisting primarily of works in the public domain;
Using copyright law, DMCA or not, to protect something you don't even own, like works in the public domain, is reprehensible. Go ahead, try and defend it.
(v) an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research; or
Ahh…this is more like what we know of as fair use. It's a limited view of it, but it's very straight-forward, and thus, harder to argue against.
(vi) an act of circumvention that is carried out solely for the purpose of enabling a library or archives meeting the requirements of section 108(a)(2), with respect to works included in its collection, to preserve or secure a copy or to replace a copy that is damaged, deteriorating, lost, or stolen.”.
Preventing digitally protected works from being lost due to deterioration of media is a problem that Brewster Kahle has been asking the Copyright Office to address. Instead of being a temporary DMCA exemption, this one would be permanent. And again, hard to argue against.
Clearly, this version of the Boucher Bill is about extinguishing the content industry's previous arguments, and put them in the difficult position of railing against basic uses of digital works. This version of Mr. Boucher's fair use bill is disarming and moves the ball in the right direction, and I think it has a good chance of enactment. Please tell your members of Congress to support it! (thanks EFF!)