Madam Speaker, I am pleased to be introducing the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007. Like other bills I have introduced in earlier years, the FAIR USE Act of 2007…
Madam Speaker, I am pleased to be introducing the Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007. Like other bills I have introduced in earlier years, the FAIR USE Act of 2007 is intended to promote innovation, encourage the introduction of new technology, enhance library preservation efforts and protect the fair use rights of consumers.
As more fully described in the attached section-by-section analysis, this bill differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively. For example, the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention. I continue to believe that there should be such an exemption in the law, but content owners have expressed concern that enactment of such a provision could lead to widespread redistribution of audiovisual and other works.
In an effort to address their concerns, I have instead crafted specific exemptions to section 1201 of the Digital Millennium Copyright Act which do not pose a comparable potential threat to their business models. For example, the proposed legislation would codify the decision by the Register of Copyrights, as affirmed in a determination made by the Librarian of Congress under section 1201(a)(1) of the DMCA, to allow consumers to ``circumvent'' digital locks in six discrete areas. The bill also contains six narrowly crafted additional exemptions that are a natural extension of these exemptions. For example, given the central role that libraries and archives play in our society in ensuring free speech and continuing access to creative works, the bill includes a provision to ensure that they can circumvent a digital lock to preserve or secure a copy of a work or replace a copy that is damaged, deteriorating, lost, or stolen.
The bill contains other new elements. For example, it would limit the availability of statutory damages against individuals and firms who may be found to have engaged in contributory infringement, inducement of infringement, vicarious liability or other indirect infringement. Given the increasing extent to which content companies are on the receiving end of lawsuits, I would hope they would see the value of this element of the bill.
I have more narrowly crafted the provision codifying the Supreme Court's Betamax decision to eliminate any uncertainty about a potential negative impact on the Supreme Court's holding in the Grokster case.
I look forward to working with my colleagues and all interested parties in an effort to properly balance the rights of content owners, consumers and other constructive users of content.
I will welcome their suggestions about how the measure might be further improved as it moves forward in the legislative process.
fair use act of 2007
Section 1 sets forth the title of the bill, the ``Freedom
And Innovation Revitalizing U.S. Entrepreneurship Act of
2007.''
Section 2 would make two amendments to the Copyright Act.
Subsection (2)(a) would limit the availability of statutory
damages against individuals and firms who may be found to
have engaged in contributory infringement, inducement of
infringement, vicarious liability, or other indirect
infringement. Congress developed the statutory damages award
process in a world of physical works, principally paper and
vinyl. Today, in a world in which silicon is the principal
medium of storage, statutory damages can be so large and
disproportionate that entrepreneurs and consumer electronics
and information technology companies are declining to bring
new technology to market out of fear that they could be
bankrupted by an adverse finding of secondary liability--even
in cases in which they believed on the advice of counsel that
their new innovative hardware or software products would be
found legal if they survived costly litigation with its
highly intrusive discovery. Under the bill, statutory damages
would remain available for conduct that no reasonable person
could have believed to be lawful. With this condition in the
law, entrepreneurs, venture capitalists, and consumer
electronics and information technology companies would feel
more confident in going to court, if necessary, for a fair
hearing on the merits, and aggrieved parties could get relief
from scofflaws. Moreover, actual damages would continue to
remain available to a person harmed by secondary
infringement.
Subsection (2)(b) would effectively codify the Supreme
Court's holding in the Betamax decision with respect to
hardware devices. In Sony Corp. v. Universal Ciry Studios,
Inc., 464 U.S. 417 (1984), the Court held that because the
Betamax videocassette recorder was capable of substantial,
commercially significant non-infringing uses, two studios--
which were concerned about consumers making in-home off-air
tapes of television broadcasts--could not hold Sony
contributorily liable for copyright infringement based on
other possible or even predominate infringing uses. To
provide greater legal certainty to legitimate CE companies
bringing new products to market in the wake of the
uncertainty created by the Supreme Court's decision in Metro-
Goldwyn-Mayer Studios v. Grokster, Ltd., 545 U.S. 913 (2005),
subsection (b) would immunize these and other hardware
companies, as well as entrepreneurs, from copyright
infringement liability based on the design, manufacture or
distribution of hardware devices (or components of those
devices) that are capable of a substantial, commercially
significant non-infringing use. The enactment of this
clarifying provision, for avoidance of doubt with respect to
hardware devices, is not intended to have any negative effect
on the continued availability and application of the Betamax
standard with respect to services and software products or to
non-commercial activities.
Section 3 would amend the Digital Millennium Copyright Act.
Subsection (3)(a) would codify the decision by the Register
of Copyrights, as affirmed in a determination made by the
Librarian of Congress under section 1201(a)(1) of the DMCA,
to allow consumers to ``circumvent'' digital locks in six
discrete areas. The determination was made after a thorough
rule making process, in which the Register took extensive
testimony from rights holders, consumers, and other
interested parties. By codifying the Librarian's
determination, Congress would ensure that these practices may
continue, without the need for extensive review by the
Register and the Librarian under section 1201(a)(1) three
years from now. The importance of these exemptions was
demonstrated by the Register's extensive supporting
analysis. Making them permanent would create greater
certainty among various user communities. The need to
codify the exemptions is all the more compelling now that
TracFone has challenged the entire DMCA rulemaking process
as an unlawful delegation of legislative authority.
As determined by the Librarian in the Final Rule published
in the Federal Register on November 27, 2006, persons making
non-infringing uses of the following six classes of works
will not be subject to the prohibition against circumventing
access controls of the DMCA:
1. Audiovisual works included in the educational library of
a college or university's film or media studies department,
when circumvention is accomplished for the purpose of making
compilations of portions of those works for educational use
in the classroom by media studies or film professors.
2. Computer programs and video games distributed in formats
that have become obsolete and that require the original media
or hardware as a condition of access.
3. Computer programs protected by dongles that prevent
access due to malfunction or damage and which are obsolete.
4. Literary works distributed in ebook format when all
existing ebook editions of the work contain access controls
that prevent the enabling either of the book's read-aloud
function or of screen readers that render the text into a
specialized format.
5. Computer programs in the form of firmware that enable
wireless telephone handsets to connect to a wireless
telephone communication network, when circumvention is
accomplished for the sole purpose of lawfully connecting to a
wireless telephone communication network.
6. Sound recordings distributed in compact disc format and
protected by technological protection measures that control
access to lawfully purchased works and create or exploit
security flaws or vulnerabilities that compromise the
security of personal computers when circumvention is
accomplished solely for the purpose of good faith testing,
investigating, or correcting such security flaws or
vulnerabilities.
As an extension of the Librarian of Congress's
determination, subsection (3)(b) of the FAIR USE Act would
enable individuals in six narrowly defined circumstances to
circumvent technological protection measures:
Paragraph (i) would extend the Librarian's determination
with respect to excerpts of audiovisual works for use in all
classrooms (instead of just in college media studies
classrooms). Under the provision, an instructor could
circumvent a digital locks on audiovisual works included in
the collection of a library or an archives in order to make
compilations of portions of those works for educational use
in a classroom at all grade levels.
Paragraph (ii) would authorize consumers to circumvent a
lock on a DVD or other audiovisual work in order to skip past
commercials at the beginning of it or to bypass personally
objectionable content (such as pornographic scenes) contained
in the work. The provision does not authorize consumers to
make back up DVDs for archival or any other purpose.
Paragraph (iii) would authorize consumers to transmit a
work over a home or personal network but not to circumvent
for purposes of uploading that work to the Internet.
This provision would ensure that consumers can make fair
use of content they have lawfully acquired, as long as they
do not engage in the mass, indiscriminate redistribution of
that content over the Internet.
Paragraph (iv) would allow individuals to access public
domain works that are in a collection of works made up
primarily of public domain works. It thus would preclude
content owners from denying the public access to public
domain works simply by repackaging them with one or more
copyrighted works and then applying a digital lock to
restrict or deny access to all of the works.
Paragraph (v) would advance long-established First
Amendment rights by authorizing reporters, teachers, and
others to circumvent digital locks blocking access to works
of substantial public interest, when circumvention is
accomplished solely for purposes of criticism, comment, news
reporting, scholarship, or research.
Paragraph (vi) would authorize circumvention of
technological measures that effectively control access to
copyrighted works for the purpose of enabling a library or an
archive to preserve or secure a copy of a work or to replace
a copy that is damaged, deteriorating, lost, or stolen. This
would ensure that libraries and archives can continue to
engage in activities specifically authorized by section 108
of the Copyright Act.
The exceptions to the DMCA set forth in subsections (3)(a)
and (b) are based on extensive comments and testimony
received by the Copyright Office and the Congress. Their
enactment is not intended and should not be construed as in
any way limiting other rights or interpretations of either
the Copyright Act or the DMCA as to which consumers and other
users have had their rights vindicated in the courts or those
which have not been addressed by the courts.
Rep. Jo Ann Davis (R-VA)