Legal Bytes: Fair Use - Wherefore Art Thou Going?
     By John Brewer - February 2006

       The news media is reporting the current brouhaha over electronic eavesdropping and surveillance of telephone calls, email, and Internet searches. The US Senate is set to begin debate on whether Judge Samuel Alito is the right person to follow Justice Sandra Day O’Connor. Congress is debating how to manage recover in New Orleans, fund wars in Iraq and Afghanistan, and address the reality of record deficits in the federal budget. It is a good time for the entertainment industry to make an end run on “fair use.”
       Fair use is a legal concept that permits the public to use copyrighted content without paying for the use, subject to specific restrictions. The entertainment industry perceives “fair use” as tantamount to theft by the unwashed and the unsaved. Draft legislation sponsored by the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) is being prepared for filing in Congress.
       The new legislation is being circulated by Senator Gordon Smith (R-Ore).and is titled the “Digital Content Protection Act of 2006.” The Electronic Frontier Foundation (EFF) reports that “fair use” will be limited to “customary historic use of broadcast content by consumers to the extent such use is consistent with applicable law” under the DCPA. EFF continues, “had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo; in 2000, no iPod. “Fair use” has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely customary historic uses. Sony was entitled to build the VCR first and resolve the fair use questions later.”
       EFF interprets the proposed legislation as giving regulators (that could be largely staffed by industry types) the power to prohibit new technologies in advance of their introduction to public use. Past practice was to permit the introduction of new technology and then permit the courts to rule whether copyright law was applicable and, if so, whether the use of the technology was an exception under “fair use.” As an example, the public is permitted to tape a television program on a VCR and play it back later as a “fair use” exception to copyright law. This practice is called “time shifting.”
      The new law will permit the device or technology only if it meets the criteria of “customary historic use.” New technology will probably not qualify as “customary historic use.” EFF predicts a world where technology will be frozen in time because industry lobbyists will have the power to prohibit new technology. Anyone who thinks otherwise is naïve. The federal regulatory agencies have seen “sea changes” in their attitudes under the current administration in the determination of the proper balance between industry and public interests.
      The Public Knowledge web site states that the Smith legislation is basically a rework of what is known as the “Hollings Bill” from 2002. Public Knowledge states further “the fact remains that the main issue here is not about piracy, it’s about control. The content industry needs a congressional mandate to control the functionality of consumer electronics and PCs, and in turn, what consumers can do with the devices and content they legally obtain.
      The Senate has introduced the "Digital Content Protection Act of 2006," a bill that will create "Broadcast Flags" for all digital radio and television, leading to FCC oversight of all new digital media technologies from iPods and PSPs to TVs and DVD recorders.”
      Another web site, a very interesting web site indeed, is boingboing.net. Boingboing has the following to say about the Smith legislation.
     “Under the DCPA proposal, digital media technologies would be restricted to using technologies that had been certified by the FCC as being not unduly disruptive to entertainment industry business-models. There are two things to be certain of this century:
       1. Everything that can be expressed as bits [digital content] will be expressed as bits
       2. Bits will only get easier to copy
      The entertainment companies are convinced that their businesses depend on copy-proof bits. This is ridiculous: there's no such thing, there never will be.
      Governments that try to protect businesses that demand copy-proof bits are like governments that try to protect businesses on the sides of volcanoes, who demand an immediate end to business-disrupting lava.
      If the current entertainment companies can't or won't adapt to a world of bits, that's too bad. Let them die, and let new businesses that thrive in the new technological reality take their place. If you can't stand the heat, get off the volcano.
      Back in the mainframe days, IBM made its money by giving away computers below cost and then charging a bundle for keyboards and printers. Hitachi killed the mainframe business by introducing cheap peripherals for IBM mainframes. Killing mainframes didn't kill computers: it made them better. IBM was forced to get into the minicomputer business, which led to the personal computer.
      If computer industry complaints got the same attention as the entertainment crybabies get from lawmakers, there'd be 10,000 computers total in the world, running punchcards, with three companies making modest sums servicing them and shipping a new model every three years.
      Hollywood's crybaby capitalists accuse us of being "communists" with one breath, and in the next, they go begging to Congress to turn the FCC into device czars who keep the market from being disrupted by innovation.
      Andy Setos, the Fox executive who invented the Broadcast Flag, once told me that his objective was "a well-mannered marketplace." The entertainment industry's version of a planned economy is bad policy.
      Send a strong signal to your lawmaker: if you break my TV, radio, and computer, I will campaign tirelessly for anyone who will promise to throw you out of office and undo your deeds.
      The author of the new bill to break our televisions, computers, and mp3 players, Senator Gordon Smith of Oregon, has been paid tens of thousands of dollars to do it. The National Association of Broadcasters (NAB) has been lobbying hard for the sole ability to decide how hard it's going be for us to listen to an mp3. The NAB has thrown nearly $250,000 at Republican candidates this year alone. NAB's money stuck to Gordon Smith."
       Sometimes the public has live with the legislation that has been bought by industry. Anyone who is concerned should make their voice heard.
 

John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to johnb@jnbrewer.com.

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