"Fair Use" in Peril

A soon-to-be-introduced bill in the US House of Representatives could severely alter the legality of behavior so commonplace that most Americans take it for granted.

When photocopiers became widespread in the 1960s, people quickly discovered—to the dismay of publishers—that they could be used to copy newspaper and magazine articles and sections of books. The swelling popularity of the cassette deck in the 1970s gave millions of music lovers their first opportunities to make their own compilation recordings, a development that launched the music industry into paroxysms of hysteria over "widespread copyright violations" and "lost sales," the same song it is singing today. To the surprise and delight of many executives, the market for prerecorded cassette tapes eventually eclipsed the market for vinyl records.

The introduction of the videocassette recorder in the late 1970s was opposed on grounds of copyright violation by Walt Disney Company and other film studios, which fought against it and its originator, Sony Corporation, all the way to the US Supreme Court. As the case wound its way through the legal system, the machines proliferated by the millions. In 1984, the Court ruled that recording television programs for private non-commercial use, a practice that came to be known as "time shifting," was well within so-called "fair use" provisions in US copyright law. Sales and rentals of pre-recorded videotapes became unanticipated major sources of revenue for the film studios.

Other courts had made similar rulings regarding photocopiers and cassette decks. Over the past four decades, Americans have become very comfortable making copies of all kinds of copyrighted material. The age of analog copying paved the way for the rapid acceptance of digital technology—in particular, the CD burner, now a standard component in most personal computers. Millions of people now make their own bit-for-bit copies of commercial compact discs, and rightly assume that as long as they aren't selling the copies they aren't committing any crimes.

All that could change if a couple of key Congressmen have their way. Representatives Howard Coble (R-NC) and Howard L. Berman (D-CA) have prepared anti-piracy legislation that could make what's legal today illegal tomorrow. About to go before the full House of Representatives for a vote, Coble and Berman's bill includes many of the provisions in Senator Ernest Hollings' Consumer Broadband and Digital Television Promotion Act (CBDTPA), introduced for consideration by the Senate in late March of this year.

Working in cooperation with the US Copyright Office, Coble and Berman claim that advances in technology mandate changes in copyright law, especially regarding the sharing of digital files. Their proposal would restrict backup copies of software and music recordings, and could even make sharing videotaped television programs a crime, according to some interpretations. Temporary digital copies, or "buffer copies," are exempted, but that's little comfort to the thousands of webcasters who would be effectively shut down by the passage of the bill.

Under Coble and Berman's as-yet untitled bill, the normal use of copyrighted material would become infinitely more problematic. "Let's say I obtained a copyrighted work under fair use, say a photo of Mickey Mouse," University of Pennsylvania intellectual property expert R. Polk Wagner told CNet news. "If I wanted to discuss, criticize or share that work, I need to interact with other people. Yet section one of the draft bill quite clearly says I have no rights to distribute the work, which would seem to rather severely limit my use. In the digital era, interaction takes place by transferring and copying files."

Coble and Berman are chairman and ranking Democrat, respectively, of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property. The two previously introduced a bill that would make submitting false information in the application for an Internet domain name a crime punishable by up to five years in jail. Their antipiracy bill is given an even chance of passage thanks to the general concern about security in the wake of the terrorist attacks of last September.

The two Congressmen have also authored legislation attacking peer-to-peer networks. News of their latest legislative creation came just a week after record labels announced that they might begin legal attacks against private individuals for non-commercial copyright violations. Berman has also said he plans to introduce legislation that would protect copyright holders who launch technological attacks against violators. He has some opposition in the House, particularly from Reps. Chris Cannon (R-UT) and Rick Boucher (D-VA), who last year introduced a bill known as the Music Online Competition Act. MOCA would force the music industry to resort to marketing tactics rather than legislative solutions to improve its faltering bottom line.