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Ask and you Shall Recieve

Crazy Ivan

A week ago, I published an essay(HTML RTF) calling for Congress to definitively reinstate the historical fair use rights taken away by the DMCA. It seems that Congress, or at least all of it may not be as clueless as I believed. It turns out that some representatives introduced a similar bill over a year ago. This bill which is aptly named, "The Digital Media Consumer Rights Act" (HR 107) about to undergo hearings in the House would effectively restore the rights of end users of digital media.

The bill is not exactly what I asked for. It does not outrightly ban the unfavorable copy-protection practices of the music industry. It does, however, require that such media be sold in a clearly labeled fashion; identifying the nature of the copy protection included on the disc. Previously, the music industry has refused to be forthright about which discs carry such illicit protection mechanisms. The only way for consumers to identify them was though a series of incomplete, underground lists whose compilation, of course, required that a number of consumers already be defrauded. With clear labeling, a boycott would be easy to organize and the record companies will quickly be made to realize the consumer base will not tolerate copy protection.

The fundamental victory, however, is not in bringing these copy protection schemes to the surface. They are fairly easy to circumvent and present only minor inconveniences to the type of user who would wish to do so. The real victory here lies in the restoration of fair use principles encompassed in the sentence, "and it is not a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention does not result in an infringement of the copyright in the work." This re-asserts the right of end users to work with media they purchase for their own personal use. Furthermore, it moves the focus of the copyright infringement issue from "circumvention" to "distribution." That is, it moves criminalization back from the ability to infringe, to actual infringement.

The bill goes further in it guarantee of rights stating "It shall not be a violation of this title to manufacture, distribute, or make non-infringing use of a hardware or software product capable of enabling significant non-infringing use of a copyrighted work." This rectifies many of the more stupid provision of the DMCA. First, it removes the inadvertent prohibitions on hardware and software construction created by the DMCA. This means that project which have a theoretical means of violating copyright, but have other legitimate purposes are no longer prohibited. Linux DVD software and home built HDTV sets will be able to be openly crafted by enthusiasts. Second, if "non-infringing use" is correctly interpreted to include personal backup copies then the software protection would be extended to decryption software for this purpose. It would mean the recognition of the fact that you don't stop crime, by banning its tools, but by banning and stopping the crime itself.

This law would literally make your property, yours again. The use of the media you lawfully obtained shall once again be your choice. The fact that a few Congressmen have seen fit to stand for ideals of freedom in the face of a deluge of industry pressure is a tribute to the spirit of republicanism, which has faded so quickly from this nation. I can only hope the rest of those who allegedly represent its people can be made to see their wisdom. Republicanism was founded on the basis that the people could not wisely govern themselves. However, if, as I fear, this law fails to pass and rectify the injustice wrought upon us by those who governed in our stead, then I fear that we will face republicanism greatest weakness: What happens when the representatives cannot wisely govern the people?

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Last Site update on 5-18-05