Several weeks ago I promised more comment (read previous post here) after I had read up on the proposed law, so here goes.
Perhaps the biggest confusion about the FAIR USE Act is caused by its name; since it is really aimed at reforming the anti-circumvention rules of the DMCA, it does not directly deal with the fair use provision of the Copyright Act. In fact, in his remarks while introducing the bill, Rep. Boucher explicitly stated that “the revised bill does not contain the provision which would have established a fair use defense to the act of circumvention.” Boucher’s co-sponsor, Rep. John Doolittle acknowledged in a recent interview that it was necessary to narrow the scope of the bill somewhat by eliminating such a provision because the content industry would oppose a full fair use defense so vigorously.
But the FAIR USE Act does not entirely ignore fair use either. Rather inconsistently, Rep Doolittle, in the same interview mentioned above, also referred to the proposed bill as an attempt to “preserve fair use for the consumer.” What the FAIR USE Act actually would do is to introduce an exception to the anti-circumvention rules that is not as broad as fair use, but that would establish a defense to charges of circumvention that looks a lot like fair use. Specifically, section 3(b)(v) of the new bill would allow circumvention to gain access to “works of substantial public interest… for purposes of criticism, comment, news reporting, scholarship, or research.” This sure sounds like fair use, especially in its focus on activities strongly protected by the First Amendment. One major difference is that, by providing an exclusive list of the allowable purposes for circumvention, this bill would not permit circumvention for most commercial purposes, even if the use would otherwise fit within fair use. Also, “works of substantial public interest” is presumably a narrower category than all the works that might be subject to fair use, but defining this narrower category would certainly generate as much as litigation as fair use itself does.
The big question for the FAIR USE Act is whether it has any chance of passage. Two previous versions (which did include a full fair use defense to circumvention) failed to advance very far in Congress. Rep. Doolittle admits frankly that the change to a Democratic-controlled Congress has not significantly improved chances this year, since the new Chair of the relevant House committee is less sympathetic to the bill than his predecessor. The hope is that the somewhat narrower scope of the bill, combined with increasing public awareness of the draconian impact of DMCA anti-circumvention rules, will improve the environment this time around. Given the other valuable (and necessary) provisions found in the bill for libraries and for classroom teaching, even a version without the broad exception quoted above would be worthwhile.