Fair Use At Risk?
By Wes Phillips February 19, 2006 — One of the provisions of the Digital Millennium Copyright Act (DMCA) is that the US Copyright Office hold hearings every three years to ensure that the DMCA is operating properly. For one month prior to those hearings any interested party can submit comments calling for exceptions or revisions. The latest comment period began on January 4, 2006 and has resulted in some fascinating comments.

Among the most eye-opening was a joint reply filed by 14 content-providing trade groups, including the Motion Picture Association of America (MPAA), Recording Industry Association of America (RIAA), and the Authors' Guild, Inc. (Full disclosure department: I am a member of the Authors' Guild and was appalled to see the organization participating in the joint reply.)

"Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies" is pretty dry reading for us non-lawyers, but it has a few immensely disturbing claims within it. The most troubling is its bold attempt to argue that fair use, as it is currently understood, has no legal reality; it has only existed thus far because the content providers have "routinely granted" it.

The statements of groups in favor of any form of copying "provide no arguments or legal authority that making back-up copies of CDs is a non-infringing use," the "Exemption" contends. After approving of Apple's FairPlay digital rights management technology, which prevents copying, the "Exemption" then addresses back-up copying: "Even if CDs do become damaged, replacements are readily available at affordable prices."

This seems, of course, quite a different line of argument to that offered by the RIAA attorneys in the MGM v. Grokster case, where they said, "The record companies . . . have said for some time now . . . that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod." Of course, technically that wasn't about making backups, and that was just the RIAA talking; it may well be those pesky movie studios, professional photographers, and, yes, writers who are now adopting a tougher stance. Or, it might be that the film and record industries are trying to create a new "understanding" of intellectual property management.

Be careful what you wish for, however. Too much "protection" in the form of locked content may well convince consumers that CDs just aren't worth the price—or the inconvenience. For an industry teetering on the brink of extinction, that seems an odd strategy for the future.

Speaking of the future, an article published at the BBC's website observes that artists as well as consumers have fair use rights that need preservation. The issue at hand is a proposed extension of recording copyrights from 50 to 95 years. Arguing that musical creativity is a cyclical process and that new artists borrow from older ones to create future classics, the article points out that groups like the Beatles and the Rolling Stones will continue to garner income from publishing copyrights long after recording copyrights have expired. The difficulty is getting the protection just right.

Yes, it is difficult. But that's no reason not to try to get it right. Denying fair use gets it precisely wrong.