Fair (Use) Is Fair

Legislation that tweaks the DMCA is worthy of IT support.

If you think a proposed bill designed to give consumers the right to make backup copies of DVDs doesnt have much to do with your day-to-day IT operation, youre wrong. H.R. 107, the Digital Media Consumers Rights Act of 2003, was introduced by Rep. Rick Boucher, D-Va., and is designed to ensure fair-use rights for consumers of digital products such as movies and music. Bouchers bill seeks to ensure these rights by amending the Digital Millennium Copyright Act, and I believe its worthy of your support.

If youve been reading my columns, you already know that I consider the DMCA to be one of the biggest threats facing IT today—right up there with security problems and bad patents.

The DMCA was originally presented to Congress as a tool to prevent piracy of intellectual property. In the six years since it was enacted, however, the DMCA has become the poster child for poorly written laws that reach well beyond their original intent and have far-reaching negative effects that can stifle innovation and individual rights.

There are two main problems with the DMCA.

First, the act makes it illegal to circumvent protection schemes, even if the end-use purpose is legal. For example, youre breaking the law if you copy a DVD to your laptop so you can watch a movie on a long flight, even if you delete the image after watching it. In the IT universe, you could be on the wrong side of the DMCA if you perform full system backups with images that include anti-piracy-protected software.

The second problem with the DMCA—and one that has an even more significant impact on IT—is it makes it illegal to traffic in tools that can circumvent protections. The DMCA is so unclear on this point that developers of some security products have pulled their wares from the Web.

LaBrea, for example, is a tool tool that traps worms by disguising its destination Web address. This is a no-no by some state DMCA standards, and the developer of this useful security tool decided to remove the application for fear that he would be charged with a crime.

The DMCA has also been used by some companies to club competitors. Lexmark, for example, charged makers of third-party ink cartridges with violating the DMCA. The cartridges had to be made compatible with a chip that Lexmark uses, and Lexmark argued that the ink-cartridge makers broke copy protection to achieve compatibility.

Click here to read more about the Lexmark case. Thats nothing. The DMCAs provision in this area is so broad that Bic could be charged with violating the act because its felt-tip pens could be used to defeat some CD music protections.

The DMCA would be hard to swallow no matter what, but it would go down a bit easier if it went even a little way toward achieving its stated goal: to prevent piracy. But it hasnt.

Rep. Bouchers DMCRA is designed specifically to fix the DMCAs two major problems. Most important for consumers, Bouchers bill would make it legal to circumvent protections for the purpose of exercising fair-use rights. This means that you would be able to legally back up, transfer and time-shift digital content for legitimate personal use.

The DMCRA would also make it legal to produce products that could be used to circumvent protections but whose stated and main purpose was legal (such as felt-tip pens).

Ill be writing my congressional representatives and asking them to support Bouchers DMCRA. Ill be asking them to support my right to create and use the tools I need to do my job, to protect my right to use products I have purchased legitimately and to encourage competition.

You should consider doing the same. Maybe the DMCA hasnt touched you yet, but the one thing its very good at is expanding its reach. Do you want to consult a lawyer every time you purchase a product? Do you want to wake up one day and find that a trusted tool is now considered illegal?

Not me. Bouchers bill is the next best thing to getting rid of the DMCA altogether, and we should all get behind it.

Labs Director Jim Rapoza can be reached at jim_rapoza@ziffdavis.com.

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