The Home Recording Rights Coalition (HRRC) is calling for widespread support for H.R. 1201, the Fair Use Act introduced today by Rick Boucher (right) and John Doolittle.

"Fair use protection is a part of the Copyright Act," says HRRC chairman Gary Shapiro. "It is meant to be developed on a case by case basis, as new technologies are introduced.

"Yet the overhang of absurd-sounding but real statutory damage calculations, as applied to nationwide distribution of products like the VCR, requires that even the largest businesses must potentially 'bet the company' on winning an expensive and intrusive lawsuit."

HR 1201, or the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007,m to give it its full name, addresses this and other imbalances in US law, says Shapiro of oratoria

Says the HRRC:

"In suits for iindirecti infringement, aimed at legitimate products like the VCR, it limits copyright owners to actual damages rather than out of scale 'statutory' rewards, unless the conduct is clearly and obviously illegal.

"It codifies the Supreme Court's 'Betamax' holding that findings of indirect infringement should not be based on the design of consumer electronics or computer devices, or on their design or selection of components, if the device has a substantial non-infringing use.

"It codifies consumer protections as recently formulated by the US Register of Copyrights: That activities of consumers, librarians, and educators in using content at home or for other constructive purposes that are legitimate under the copyright law should not be held to be violations of the Digital Millennium Copyright Act (DMCA). oratoria"

And, "The legislation contains several improvements to the Digital Media Consumer's Rights Act, similar legislation which the lawmakers introduced in the 108th and 109th Congresses," says Boucher's site.

However, Ars Technica's Ken Fisher isn't nearly so buoyant.

"A cursory investigation suggests that the bill won't make much of a dent in the DMCA," he says. "In its present form, the FAIR USE Act is effectively a watered-down version of Boucher's DMCRA, which was strongly opposed by the content industry and failed to gain traction in the 108th and 109th Congresses. The DMCRA would have made any 'fair use' of digital goods legal, regardless of anti-circumvention laws.

"The FAIR USE Act does not provide this, as it was a major sticking point with the content industry."

Nor does it appear to deliver on clear protection for making personal use copies of encrypted materials, Fisher says, going on:

"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 made illegal in one fell swoop.

"The bill does seek to place limits on statutory damages stemming from infringement, including contributory infringement, inducement of infringement, vicarious liability or other indirect infringement. In doing so, the bill will seek to codify the law regarding inducement and contributory infringement to ease fears among technology companies stemming from the fallout of MGM v Grokster."

Meanwhile, here's what Boucher's site says:

Because the fair use rights of consumers of digital media are severely threatened today, Boucher and Doolittle propose amending a 1998 law, the Digital Millennium Copyright Act, which was enacted at the behest of motion picture studios, the recording industry, and book publishers.

"The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. 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," Boucher said. "The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work," Boucher explained.

"Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market," Boucher added.

"America can and must be a world leader in technological innovation," said Doolittle. "This objective is hindered by the provisions in the DMCA that discourage the free flow of ideas and information. The FAIR USE Act removes those disincentives, and I look forward to seeing the benefits that will ensue."

The FAIR USE Act differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively, by Representatives Boucher and Doolittle. In an effort to address the concerns expressed by content owners, the FAIR USE Act does not contain provisions which would have established a fair use defense to the act of circumvention.

The legislation instead contains 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 narrowly crafted additional exemptions that are a natural extension of these exemptions.

Other new elements of bill include limiting 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. A more narrowly crafted 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 is also contained in the legislation.

Finally, 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.

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