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Lawmaker Revs Up Fair-Use Crusade

Posted by CmdrTaco on Thu Jun 16, 2005 01:00 PM
from the might-he-be-on-our-side dept.
The Internet
peipas writes "Wired News has posted an interview with Rep. Rick Boucher (D-VA). In it he defends his stance in support of fair use and against the DMCA and other measures sought by the entertainment industry. The interview also touches on universal broadband and the recent overturning of the broadcast flag."
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[+] Politics: Fair Use Bill Introduced To Change DMCA 152 comments
An anonymous reader tips us to a Washington Post blogger's note that Representatives Boucher (D-VA) and Dolittle (R-CA) today introduced the FAIR USE Act to update the DMCA to "make it easier for digital media consumers to use the content they buy." Boucher's statement on the bill says, "The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public's right to fair use..." The Post failed to note the history. Boucher has been introducing this bill for years; here are attempts from 2002 and 2003. The chances may be better in this Congress. And reader Rolling maul writes in to note Ars's disappointment with the bill for leaving the DMCA's anti-circumvention provisions intact: "Yet again, the bill does not appear to deliver on what most observers want: clear protection for making personal use copies of encrypted materials. There is no allowance for consumers to make backups of DVDs, to strip encryption from music purchased online so that it can be played anywhere, or to generally do any of the things that the DMCA has made illegal."
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Lawmaker Revs Up Fair-Use Crusade 50 Comments More /

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  • Time for a Conference Call (Score:4, Funny)

    by ravenspear (756059) on Thursday June 16 2005, @01:06PM (#12834098)
    Bainwol to Valenti: I told you to up your allowance on him. We can't afford this.
    • Glickman to Rosen: You seemed to have better luck with this. Should be just keep pouring in money or appeal to the children?
  • Does anyone know of any figures on how much the entertainment industry has lossed due to piracy versus how much they have spent trying to stop it? My guess is that they have spent way more on trying to stop it. What a great business model.
    • Well, according to their math, every copy pirated is a sale lost, so they've "lost" trillions of dollars.
      • > Well, according to their math, every copy pirated is a sale lost, so they've "lost" trillions of dollars.

        Yes, and that's silly. They make the assumption that increases in price don't affect demand. Then again, when you're talking about monopolies, they tend to think that way.

        If the cost of the average CD went from $0.00 over a P2P network to $20.00 at the local mall, I wouldnt' buy the average CD. They don't seem to grasp the concept that demand and price have a generally inverse relationship.
        • Yeah, no kidding. One thing they also don't get is that, P2P or no P2P, if a CD is $20, I simply won't buy it, and neither will a lot of other people. Entertainment is something we can do without if the price is too high. It would have to be an extremely good CD for me to go out and pay $20 for it. If the price were much higher, it could be the most sublime music in the world and I wouldn't buy it.

          I actually don't mind at all paying a reasonable price for a CD or a movie. Unfortunately, a lot of peopl

        • No kidding. When a new CD is $20 and a new DVD is $14, something is VERY wrong.

          How many people does it take to make a music CD? Twenty? Maybe thirty tops.

          Now how many people does it take to make a movie? Let's assume a modest 200. Now how much more does it cost to produce a movie? Well, probably on the order of many tens of millions of dollars.

          Sure people will listen to a CD over and over again, but these music companies are out of their minds with their pricing and bad "piracy math".
          • For what its worth, a wide release movie has already made money (well, most) by the time the DVD comes out.

            The CD has to pay back for the entire cost of the production, since the revenues earned on tour dont go to the studio.

            I still think its retarded tho. What the actual musicians make from the cost of that CD is tiny, and the money used to make the CDs is actually in the form of a loan the artist.
  • that isn't a puppet with the industry lobbyists hands jammed up his ass. Imagine what a world we'd be in if politicians used common sense and did what's right?

  • Boucher is not our hero... (Score:5, Insightful)

    by kajoob (62237) on Thursday June 16 2005, @01:11PM (#12834160)
    This is the guy that wants to trade the broadcast flag for our fair use rights [com.com]. Our representatives shouldn't be trading one set of our rights in order to keep a right we already have. Fair use means nothing if everything is controlled with a broadcast flag and there is nothing for us to share.

    • Re:Boucher is not our hero... (Score:4, Insightful)

      by Feynman (170746) on Thursday June 16 2005, @01:21PM (#12834274)
      I was struck by this, too.

      Frankly, so what if "high-value television programming delivered over the air...[is] going to get recorded and uploaded to the internet" [TFA, 4]. It was delivered over the air. Couldn't just about anybody have recorded it anyway?

    • Did you actually RTFA that you linked?

      Part of the point of the DMCRA is to revoke the provisions of the DMCA that made it illegal to produce devices that bypassed copy protection features, as long as the uses of the content are fair (e.g., not sharing it wholesale over the Internet). Boucher wants to ensure that we can do things like time-shift television shows, skip commercials, watch it backwards or extra-fast, or keep an archival copy, not to mention all the things that libraries, journalists, and acad

      • Re:Boucher is not our hero... (Score:5, Informative)

        by kajoob (62237) on Thursday June 16 2005, @01:49PM (#12834503)
        It actually amuses me the extent Fair Use is misunderstood on slashdot


        Yeah me too, so let me point out where you have an almost criminal misunderstanding as to what fair use is...

        You do realise that 'Fair Use' rarely if ever extends to sharing copyrighted material that you dont own copyright to?


        No I didn't realize that, but that may be because Fair Use rights only come into play when you don't own the copyright!! Fair Use is when you use a copyrighted work without having to ask permission from the copyright owner.

        You can cite statutes all you want, but unless you know the case law behind it, you don't know what it has been interpreted to mean. For instance, did you know that the Supreme Court has held that "any individual may reproduce a copyrighted work for a 'fair use;' the copyright owner does not possess the exclusive right to such a use." SONY CORP. OF AMER. v. UNIVERSAL CITY STUDIOS, INC., 464 US 417 (1984).? I can tell that you didn't.

        The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use:


        Did you even read what you cited? That is a list of "EXAMPLES", and the list is not exclusive. Again, if you did any research you'd find that there is no exhaustive list for "fair uses" nor is there any bright line test for what constitutes fair use. The factor that has the most weight to ascertain whether or not a use is a fair use is "was it for commercial purposes?". That's the biggy, so if you're using it for personal use (does that include sharing? we don't know yet) then it is more likely that your use is non-infringing, but even that is not dispositive.

        So basically, unless its incidental or judicial in some fashion, Fair Use has generally been found to be not applicable to the entire item, only excerpts or quotations, and rarely the whole content.


        OK, you just contradicted yourself. You said previously that you can't copy an entire work without infringing, but now you say that Fair Use has only been generally (read: not entirely) applicable to copies of whole works? As I said before, there is no bright line test for what is inringing or non-infringing, but it is entirely legal to copy an entire cd under the doctrine of fair use. Will saving a television show and sending it to Aunt Sally fall under the auspices of "fair use"? I don't know because the case isn't in front of me, but I do know that you are completely off-base to that unequivocally that doing so is an abolute infringing act.

        I don't mean to sound harsh, but the next time you try to slap someone down, make sure your facts are correct and that you indeed know what you are talking about.

        • No I didn't realize that, but that may be because Fair Use rights only come into play when you don't own the copyright!! Fair Use is when you use a copyrighted work without having to ask permission from the copyright owner.

          My comment on sharing copyrighted worked was directed straight at the parent comment. Fair Use is a set of exclusions from standard copyright law that the copyright owner has no control over - the parents example of sharing would struggle to come under any of the examples given of ac

          • I don't want to get into a pissing contest and rebut everything you say point by point all night long because it's obvious you're not an attorney, but you said the following:


            The section places NO WEIGHT on any single one of those, each is as equal when determining whether the usage is fair use or not. The fiar usage exclusions within copyright law all use language which leans toward partial redistribution and now redistribution of the entire work.

            Those are indeed the factors, but like I said before

  • Might this mean that the DVD X Copy people can go back into business again? Say what you will about the quality of the software and all (it sucks, "#####" is better anyway, etc) they represent a legitimate software product that did a good job for consumers who wanted to protect their media purchase. It was simple and effective and definitely provided the tools necessary for people to exercise their fair use rights.... rights that still exist even while the tools to make use of them are illegal.

  • Mixed up? (Score:4, Informative)

    by Tezkah (771144) on Thursday June 16 2005, @01:21PM (#12834278)
    Skype is a file-sharing application and that's used by millions of people. (Universities) are using file sharing as a way to disseminate research papers and other legitimate items. Getting away from centralized servers and going to peer-to-peer communications all across the map means the communications are faster and much more user-friendly. I will predict that within a number of years, most of the uses of file sharing are going to be legitimate.

    I think you mean Peer to Peer, not "File Sharing", which is one kind of P2P. Using Skype for internet telephony and downloading legit files from bittorrent are completely different things. The first is at risk from phone companies, the second is at risk from **AA organizations.

  • I made Fair Use of my friend's girlfriend... (Score:5, Funny)

    by Anonymous Coward on Thursday June 16 2005, @01:31PM (#12834357)
    ...and he's still pissed at me. I don't see what the problem is. I only used her for one night while he was at a family dinner, I did not intend to permanently deprive him of use of her, and she still loves him and everything.

    But he's still all hung up about the whole issue. Jeez, some people are so narrow-minded. Guy's as bad as the RIAA. I guess I should be glad he isn't litigating.

  • A reversal in the Democratic and Republican roles. (Score:4, Interesting)

    by CyricZ (887944) on Thursday June 16 2005, @01:31PM (#12834362)
    I think we have seen a reversal in the roles of the Democratic and Republican parties within the United States. Traditionally this sort of thing would have been done by a true (ie. not neoconservative) conservative Republican, fighting for the individual rights of the American citizenry. Indeed, I find it odd that a Democrat is now the one leading the charge for individual rights.
    • No No No, we've ALWAYS been at war with Eurasia!

      See even the newspaper says that much!

    • think so? (Score:5, Informative)

      by BitterAndDrunk (799378) on Thursday June 16 2005, @01:56PM (#12834555) Homepage Journal
      I don't really think it's much of a role reversal for the dems . . . historically they've championed rights of the individual over rights of businesses. After all, what do you think most social programs revolve around?

      Individual assistance to those who otherwise may fall through the cracks.

      Plus, both parties at this point seem to bow to their corporate masters rather than champion anything based on their ethical/moral considerations.

    • Traditionally this sort of thing would have been done by a true (ie. not neoconservative) conservative Republican, fighting for the individual rights of the American citizenry.

      I call BS.

      Not since the 19th century has the republican party given hardly any thought to the individual rights or welfare of citizens.
      I sure as hell dont remember hearing about the republican party being particularly active protecting civil rights of disenfranchised minorities during the sixties.

      More accurately, Bouchers actions represent the type of actions that gave the Democratic party a reputation of being the champion of the 'little guy' in the first place.

      Its too sad he is the exception rather than the rule, IMHO both the Republican and Democratice parties are essentially corporate whores these days.
    • Given that the Clinton administration brought deficits under control, oversaw a huge increase in GDP, etc. and the current Republican administration has introduced some of the largest military spending increases in US history (new levels are higher than at ANY point during the Cold War),

      "Conservative" as a political label used to mean (among other things), that "the way things are" is good. That meant that conservatives tended to reject radical changes in policy, spending habits, etc. Combined with some of the only tax cuts EVER put forth during a "time of war" (during previous wars, like WWII, the upper tax bracket was increased to 90%, not dropped), the current set of conservatives in power are hard to describe as traditionally conservative. I've even heard some of these conservatives complain that people who are concerned about the current war aren't making the sacrifices needed during a time of war. Maybe if they hadn't exempted the wealthy from sacrifice, those folks would be complaining too.

      Over time, the meaning of conservative has morphed into "morally uptight" and has more to do with a politician's stance on 2-3 social issues than on any sort of fiscal conservation.
    • The war of intellectual property versus fair use seems to be fairly non-partisan. Of the current federal legislators endorsed by IPac, two are Democrats and three are Republicans. The chief enemies of fair use (Ernest Hollings {retired}, Howard Berman, Orrin Hatch) also come from both sides of the aisle.

  • The Digital Media Consumers' Rights Act for the Broadcast Flag?

  • Distraction tactics (Score:4, Insightful)

    by russotto (537200) on Thursday June 16 2005, @02:32PM (#12834879) Journal
    Boucher is the free-speech side's token politician. He never actually manages to get anything through committee, and certainly never gets it passed, and he never actually intends to.

    Rather, he's there to maintain the fiction of balance, and the hope of possibility of change for the better through the established political process. By doing so, he siphons off efforts which would be better put towards forcing change through other means, AND provides an excuse for fans of the system to tell those who are violating the laws to just simmer down and work through the political process.

    Remember, he voted for the DMCA.

  • The same old BS (Score:3, Insightful)

    by Anita Coney (648748) on Thursday June 16 2005, @03:01PM (#12835148)
    Rick Boucher seems pretty smart about the issues until the very end, when he repeats the same industry bullshit lie, namely that "the only way that I think we are going to have high-value television programming delivered over the air in digital format is if the motion picture industry has some level of confidence that it's not going to get recorded and uploaded to the internet."

    That is PURE bullshit for one simple reason: Broadcasters ARE currently delivering "high-value" content in HD format "over the air"!!!! You can't say that broadcasters won't do something unless we take action, WHEN THEY ARE FUCKING DOING IT RIGHT NOW!!!

    That bullshit lie is just a ploy to get broadcast flags in place to make sure we have absolutely no fair use rights left.

  • I think Rep Boucher understands the issues but... (Score:3, Interesting)

    by Eric Damron (553630) on Thursday June 16 2005, @03:28PM (#12835501)
    Why don't you put your entire inventory up on the web and make it available in a user-friendly format for a reasonable price per track and get away from clinging to this old, outdated business model of selling the whole CD?"

    Well I can see a couple of problems. First the music industry currently sells the entire CD as if each song had value. Unfortunately most albums have a couple of good songs bundled with crap. Twenty songs for fifteen bucks sounds reasonable but fifteen bucks for two songs doesn't. Never mind that eighteen of the songs are unwanted.

    Allowing people to pay only for the content that they really wanted would only be possible, from a corporate point of view, if the content industry could be sure that a few legitimately purchased copies would not be given away to the masses thus reducing their profit. This might be possible with the use of DRM. However DRM, if unchecked, could completely destroy fair use. If a corporation can eek out even a little profit by denying consumers their fair use rights they will. It's in the corporate nature to do whatever increases their profit margins.

    "Do I have sympathy for them? Not when they're clinging to a relic and when that's getting in the way of making good current business decisions.... They can make a fortune if they do that."

    I'm not sure which "good current business decisions" Rep. Boucher is talking about. I would like to think that making their content available at a reasonable price would be wildly profitable for the music industry while giving consumer's value for their dollars. The model is, however, largely untested and counter intuitive. Remember that corporations want profit. The more the better. If they can sell their product while grossly over pricing that product all the better. In a normal market supply, demand and competition keeps prices bearable for the consumers. It is only when the economic environment can be controlled that corporations can get away with grossly inflated pricing. Many times this can occur if a corporation can obtain some kind of monopoly, mostly through the use of copyrights, patents or laws tailored for this purpose.

    The business model that I think Rep. Boucher is talking about would threaten the monopoly that the recording industry has on distribution and is therefore a very scary model for them, I'm sure.

    At the end of the article Rep. Boucher seemed to be talking about cutting a deal with the MPAA. He suggests that he may support the broadcast flag if they support the Media Consumers' Rights Act.

    "The circuit court for D.C. has invalidated broadcast flag rulemaking, saying that the FCC lacked statutory authority (to create the broadcast flag). Not surprisingly, the MPAA has now come to us and said, "We want you to legislate."

    I don't think we are going to do that. I have been waiting for a long time for Hollywood to come to us and say, "Here's something we want" because there is something I want. And it's called the Digital Media Consumers' Rights Act."

    I haven't read the Digital Media Consumers' Act but I'm smart enough to know that many times the name can be deceiving. For example the "Patriot Act" which is anything but patriotic if one would take the time to actually read it. I also know that legislation that start out good can be perverted at the last minute by congressmen who are not acting in the public best interest.
    Call me a radical but I think we should legalize the killing of lawmakers who act against the public interest. Not random killing, of course. What we should do is have a vote every five years or so for the politician that has done the public the most harm and then take that person out into a public square and hang him/her by the neck until dead. Just a thought.
    • I haven't read the Digital Media Consumers' Act but I'm smart enough to know that many times the name can be deceiving.

      In this case it isn't. I've read it. It says three things:

      (1) You no longer go to prison for defeating DRM (unless you actually commit copyright infringement).

      (2) You no longer go to prison for offering a product to defeat DRM that enables the above noninfringing uses.

      (3) DRM crippled CDs must be labeled.

      Rep. Boucher seemed to be talking about cutting a deal with the MPAA. He suggest

  • Defending Fair Use (Score:3, Insightful)

    by Nom du Keyboard (633989) on Thursday June 16 2005, @03:28PM (#12835506)
    To defend Fair Use, you have to defend concept of the Public Domain.

    To defend the concept of the Public Domain, you have to be against insane copyright extensions.

    To be against insane copyright extensions you have to not take money and favors from those seeking to kill the Public Domain through insane copyright extensions.

    What did you say your job was again, Sir?

    • There's a little saying I like to pull out in times like this:

      "You gotta do what you can with what you got."

      It is as true as it is ungrammatical.
      • Cash has no predevined purpose, you can do anything with it, laws of physics/thermodynamics/etc. not with standing. Hell for a government it's just a number on paper, not even restrained by a physical representation. So "You gotta do what you can with what you got." becomes anything you want. If you choose to waste it then it's wasted but there was no predetermined path of that dollar into a sink-hole.
    • You must be new here. Don't you know that the way we solve problems here in the US of A is to divert attention. What, social security is gone? Hey, look over there, illegal immigrants are comming over from mexico, we need a few million dollars to stop them. Politicians keep a number of issues which will never be resolved for the purpose of calling attention to them when other things start going badly. It's the American way, when things stop working, blame something else and never try to fix the problem.
        • I couldn't aggree more with you on that. It will never be fixed though and has never been fixed because it's an easy scapegoat. I wish they would fix it.
    • So let media companies continue to abuse the American people and act as a de facto police force in order to expand the role of government in our lives? Funny - I want the government to protect me when large organizations are overstepping their authority. You respond by claiming the government shouldn't waste their time protecting the people but should instead expand their authority?
      • No, I said if the government is going to expand it's authority, Universal Broadband, why not do something useful instead. How is Universal Broadband protection, or for that matter the DMCA? Strawman.
          • Ok, obviously if I posit UNIVERSAL healthcare, and the summary AND makes reference to UNIVERSAL broadbad, what might I be tring to say.
    • Viva la corrupcion!

      This isn't an issue of the resources not really being there. It's more an issue of the free market having gone awry, and needing a correction which our country is apparently unable to accomplish.
    • Cause Universal Health care sucks rocks?
    • This was only modded troll because it got first post. How is asking how spending on Universal Broadband better than other spending a troll? Damn do people not even read the summary at the top of the story anymore.
      • I think elliminating debt to poor countries (AND helping them develop an industry) would be more than adequate. It's not fair to buy raw material from them and then sell them the processed goods for several times more. How are they gonna pay the debt if the US takes from them the very resources they need?

        • Re:Priorities (Score:4, Informative)

          by Fareq (688769) on Thursday June 16 2005, @03:05PM (#12835186)
          Or 4) he's right.

          Go look it up. The average American who is uninsured makes more than $50,000/year. That is enough to buy perfectly adequate health insurance.

          It is not enough income to drive a 7 series BMW, live in a large house overlooking the ocean, eat out at gourmet restaurants twice a week, send the kids to private school *and* buy health insurance, however.

          You've just got to decide what's important.

          Certainly you don't think I should be paying for the health insurance of those who'd rather drive a more expensive car?

    • Re:Who's on our side? (Score:5, Insightful)

      by Znork (31774) on Thursday June 16 2005, @01:34PM (#12834389)
      With the damage that intellectual monopoly rights cause to the economy, consumers and taxpayers it shouldnt be too hard to recruit supporters provided one uses the correct arguments.

      Remember, intellectual monopoly rights are, in fact, monopoly rights and nothing else. They cause the same economic damage by diverting economic resources into inefficient organizations as any other monopolies.

      Organizations that can fail to make a profit on a product that costs $10k to produce and will sell a million copies at $15 a pop shouldnt exist in a free market economy.

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