FAIR USE Act 07 Alters DMCA’s Stance

It is widely held that the DMCA needs revisions; from abusing takedown notices to false assertions of copyright ownership the DMCA has more than its fair share of balancing issues. The new changes brought on by the passing of the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007 (FAIR USE Act), in February of 07 has made some progress in addressing these problems with the DMCA.

1.    "Making a compilation of portions of audiovisual works for educational use in a classroom. (While the Librarian's latest rulemaking included a similar exemption, that exemption is limited to film scholars.)
2.    Skipping commercials or "personally objectionable content" in an audiovisual work.
3.    Transmitting a work "over a home or personal network," but only to the extent that the circumvention does not interfere with DRM restrictions that prevent the uploading of the protected content to the Internet. (Thus, this exemption could not be used as a loophole to bypass the proposed broadcast flag content protection system.)
4.    Gaining access to public domain works contained within a compilation "consisting primarily of works in the public domain."
5.    Gaining access to works of "substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research."
6.    Enabling a library or archive to preserve a copy or replace a copy that is lost or stolen." (Text from http://pblog.bna.com/techlaw/2007/02/fair_use_act_of.html)

    Michael Warnecke over at the E-Commerce and Tech Law Blog discusses the impact that the FAIR USE Act has on the DMCA and specifically the exemptions provided under the Act for fair use of copyrighted material. He points out that the major impact that the FAIR USE Act has upon the DMCA is the fact that there is no longer an exemption for the use of copyrighted material in making backup copies. This change affects the DMCA most profoundly because the removal of this exemption means that the act of backing up archiving copyrighted material for later use is now a copyright infringing act, punishable by law. Michael also makes the observation that “skipping commercials or ‘personally objectionable content’ in an audiovisual work does not authorize consumers to make backup DVDs for archival or any other purpose.” What this means is that the main loophole that consumers have used to copy DVDs or Audio CDs is now closed, unless of course you plan on creating a copy only in order to skip objectionable content and then destroy the copy afterwards.