The EFF have posted a draft of a new bill from Reps. Boucher and Doolittle, the "Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007" or "FAIR USE" Act. As of February 28, it hasn't been introduced and is not yet up on Thomas, but the draft text is available on the EFF site. The bill does the following:
- Specifies that courts may award statutory damages for secondary copyright infringement only where the plaintiff proves that "no reasonable person could have believed" the conduct constituting secondary infringement was lawful under the circumstances. Sec. 2(b)
- Codifies a Sony-ish standard for hardware makers: No liability for infringement for the design, manufacture, or distribution of a device capable of "substantial, commercially significant noninfringing use." Sec. 2(b).
- Codifies the latest round of DMCA exemptions from the Copyright Office (November 2006) in Sec. 3(a) and adds a few more (in Sec. 3(b) that exempt certain types of circumvention of access controls from liability under 17 USC Sec. 1201(a)(1), including:
- extracting clips from a work in a library for a compilation for classroom educational use
- skipping past objectionable content (similar to what was provided in the Family Entertainment and Copyright Act of 2005)
- transmitting over a local or home network, accessing a public domain work in a compilation of mostly-public-domain works
- accessing a work "of substantial public interest" solely for purposes of comment, criticism, news reporting, scholarship, or research
- circumvention by libraries in order to engage in archiving authorized by statute in the Copyright Act
A couple things of note. First, the home/personal network exception may not be sufficient to allow the kind of space-shifting that many consumers (and indeed, lawmakers) seem to think should be allowed -- like ripping a DVD to a laptop hard drive or iPod for portable viewing. BoingBoing reader Trevor Fiatal points out that the exception appears to apply only to streaming, not copying. While the bill certainly doesn't make this clear, I tend to think this exception may be broad enough to allow space-shifting, at least in theory, in some circumstances. By allowing circumvention in order to "transmit" to a home network, the bill is sufficient to allow a user to get encrypted content to a local device. At this point, it becomes a question of regular copyright law (as opposed to the DMCA) whether the making of a tangible copy (like a copy on an iPod) is infringing or not. But I agree that the bill doesn't make this clear, and might be read (or intended to be read) more narrowly.
Second, those with some familiarity with the DMCA may note that the listed exemptions apply only to acts of circumvention under Sec. 1201(a)(1) (and thus not to 1201(b)). The problem with the current exemption process through periodic rulemaking by the Librarian of Congress is that the exemptions apply only to the act of circumvention, and don't address the general prohibitions on distribution of tools for circumvention (under Secs. 1201(a)(2) and 1201(b)). So people who wish to engage in permitted circumventions may be unable to obtain a tool that would allow them to do so. At first blush, the FAIR USE Act's exemptions suffer the same limitations -- they allow circumvention, but don't do anything to permit the development or sale of devices one would need in order to engage in such permitted conduct. The exemption in Sec. 2 for hardware devices capable of non-infringing uses may have been intended to get at this problem, but as the bill is currently drafted, it doesn't fix it. Sec. 2(b) exempts the makers of such devices from liability for "copyright infringement," but does not address the question of whether the maker of a device capable of (or even specifically designed for the sole purpose of) engaging in permitted categories of circumvention would be liable under the DMCA.
Even though the bill falls short of the sweeping DMCA reform many have called for, it's still likely to be controversial. The codification of a Sony-ish standard for secondary liability for copyright infringement would seem to undo the Grokster standard, or at least muddy the waters even more, and I don't think the content folks are going to be too happy about that.