Fair Use and the DMCA

An art­icle in Wired News with the dra­matic title of “Law­makers Tout DMCA Killer” describes the most recent attempt to: (a) water down the pro­tec­tions afforded to con­tent own­ers by the DMCA; (b) ensure the pre­ser­va­tion of fair use rights on the part of users. As is usual, each side has its own rhet­oric to describe what is hap­pen­ing, so in fair­ness I took the liberty of offer­ing to read­ers of this blog the two altern­at­ive descrip­tions above. The nub:

The Boucher and Doolittle bill (.pdf), called the Fair Use Act of 2007, would free con­sumers to cir­cum­vent digital locks on media under six spe­cial circumstances.

Lib­rar­i­ans would be allowed to bypass DRM tech­no­logy to update or pre­serve their col­lec­tions. Journ­al­ists, research­ers and edu­cat­ors could do the same in pur­suit of their work. Every­day con­sumers would get to “trans­mit work over a home or per­sonal net­work” so long as movies, music and other per­sonal media didn’t find their way on to the inter­net for distribution.

And then of course on the other side:

“The sug­ges­tion that fair use and tech­no­lo­gical innov­a­tion is endangered is ignor­ing real­ity,” said MPAA spokes­wo­man Gayle Oster­berg. “This is address­ing a prob­lem that doesn’t exist.”

Oster­berg poin­ted to a study the U.S. Copy­right Office con­ducts every three years to determ­ine whether fair use is being adversely affected. “The bal­ance that Con­gress built into the DMCA is work­ing.” The danger, Oster­berg said, is in attempt­ing to “enshrine exemp­tions” to copy­right law.

To sug­gest that con­tent own­ers have the right to be paid for their work is, for me, a  no-brainer. That being said, I won­der whether the DMCA and increas­ingly more com­plex and invas­ive DRM schemes will ulti­mately back­fire — sure they pro­tect the con­tent, but they sure as heck are a pain in the ass — just my per­sonal take on it. For example, I’d love to buy digital music, but hav­ing exper­i­enced the con­trols that iTunes imposes and sud­denly hav­ing all my tracks dis­ap­pear, I just don’t bother with it now. Not to men­tion the incred­ible hoops one needs to go through to dis­play, say, Blu-ray on a com­puter — at least in its ori­ginal, non-downgraded res­ol­u­tion — why bother with all of that at all?

I won­der whether this is, in a way, his­tory repeat­ing itself in a way. I am old enough to remem­ber the early days of soft­ware pro­tec­tion — vir­tu­ally every high-end game or applic­a­tion used fairly soph­ist­ic­ated tech­niques (like writ­ing non-standard tracks on flop­pies in between stand­ard tracks) in attempt­ing to pre­vent pir­acy. Gran­ted, these have never gone away alto­gether, par­tic­u­larly for super high end soft­ware that needs dongles and and the like, and of course recently there has been a resur­gence in the levels of pro­tec­tion that have been layered on in Win­dows, but after the ini­tial, almost uni­ver­sal lock­down of soft­ware long ago, there came a period where it seemed many (if not most) soft­ware developers just stopped using such meas­ures.  At least that’s what seemed to hap­pen. I’m not quite sure why, but I won­der if this same pat­tern will repeat with con­tent rather than soft­ware. I sus­pect not. But hey, you never know.

In the mean­time, off I go, reluct­antly, in the cold, cold winter, to the nearest record shop to buy music the old fash­ioned way…

related:

1. cana­dians  —  as bad as the chinese (almost)