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[DMCA-Activists] Boucher: Exemptions Decision 'Misguided'

From: Seth Johnson
Subject: [DMCA-Activists] Boucher: Exemptions Decision 'Misguided'
Date: Fri, 31 Oct 2003 10:44:36 -0500

(Forwarded from DMCA Discussion list)

-----Original Message-----
From: Vladimir Katalov <address@hidden>
Date: Fri, 31 Oct 2003 17:39:18 +0300
Subject: [DMCA_Discuss] Boucher Calls Copyright Office 'Misguided'

October 30, 2003
Boucher Calls Copyright Office 'Misguided' 
By Roy Mark

U.S. Rep. Rick Boucher (D.-Va.), a longtime champion of fair use
rights, said Thursday the Copyright Office's ruling earlier this week
denying consumers the right to make "fair use" copies of digitally
recorded material except in very narrowly defined cases, was a
"misguided decision."

On Tuesday, the Copyright Office announced four classes of work that
will be exempt from the Digital Millennium Copyright Act's (DMCA)
specific prohibition against circumvention of technological measures
that control access to copyrighted works.

The exemptions were granted for (1.) decoding lists of Web pages or
directories blocked by Internet filtering software, also known as
censorware; (2.) circumventing obsolete digital rights management
devices called "dongles" that prevent access due to malfunction or
damage; (3.) accessing computer programs and video games distributed
in obsolete formats; and (4.) accessing e-books for which the
publisher has disabled the read-aloud function or the ability to use
screen readers to render the text into a specialized format, such as
Braille for access by the blind.

As a result of the ruling, Boucher said, "Consumers will continue to
be subject to the whims of copyright owners seeking to deny them the
right to use lawfully purchased digital works for a variety of fair
use purposes. . For example, the Copyright Office ignored this
opportunity to exempt from the DMCA the ability to bypass copy
protections so that consumers can play or display media on a variety
of home devices."

In January, Boucher made digital home recording rights the first
technology-related legislation introduced in the 108th Congress. The
bill has yet to have a hearing.

"Now that it is clear that the Copyright Office is not going to
interpret the DMCA in ways that will permit ordinary fair use
activities, the need for the enactment of H.R. 107 is more apparent
than ever," Boucher said.

Boucher added, "Consumers will not be permitted to make back-up copies
of DVDs; they will not be able to circumvent access control mechanisms
even when they have malfunctioned, are damaged, or have become
obsolete, and they will not be able to engage in certain types of
encryption research and security testing."

Boucher's bill would amend two key provisions of the DMCA which
currently prohibit the circumvention of a technical protection measure
guarding access to a copyrighted work even if the purpose of the
circumvention is to exercise traditional consumer fair use rights.

In its 1983 Betamax decision, the Supreme Court established the rights
of consumers to make copies of legally purchased copyrighted material
for the purpose of "fair use," such as making personal backup copies
or multiple copies for different media devices. The 1998 DMCA,
however, which was enacted with the enthusiastic support of motion
picture studios, the recording industry, and book publishers, makes it
illegal to make copies of any digitally-recorded material for any

The DMCA also prohibits the manufacture, distribution or sale of
technology which enables circumvention of protection measures.

Under Boucher's legislation, circumvention for the purpose of
exercising fair use rights would be permitted. The bill would also
permit the making and distribution of hardware and software if the
technology is capable of substantial non-infringing use.

"The Digital Millennium Copyright Act dramatically tilted the
copyright balance toward complete copyright protection at the expense
of the Fair Use rights of the users of copyrighted material," Boucher
told in a January interview. "This legislation 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 said the tech community now considers fair use rights to be
"one of its highest priorities" and pointed out that supporters of his
legislation include Intel, Verizon, Philips Electronics North America
Corp., Sun Microsystems, Gateway, the Consumer Electronics
Association, Computer and Communications Industry Association, the
Association for Computing Machinery, the Computer Research Association
and a variety of trade associations representing technology companies.

Electronics makers are backing Boucher's bill because they claim the
DMCA's prohibition against devices that allow for encryption
circumvention is too subjective to give manufacturers confidence to
introduce new products.



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