Redifining Fair Use

As the European Union gears up its own equivalent to the U.S. Digital Millennium Copyright Act (DMCA), fair use becomes more important on a global scale. Fair use in the United States used to mean you could duplicate copyrighted works for personal use. Mix tapes; VHS recordings of TV broadcasts; parodies; making duplicates of purchased movies; photocopying pages from books; these are all acceptable practices for use within one's own home and in more limited instances, the country at large.

Content creators also have the right to place protections, in the form of distribution rights management (DRM), on media to prevent piracy. This generally makes it impossible to produce a fair use copy of the content, without the use of a copy protection defeating scheme. In the analog world of VHS and cassette defeating copy protection could be done by simply attaching a recording device to the player.

Along came the DMCA, making it illegal to make and/or distribute tools designed to defeat DRM on digitally distributed content (even for personal use). So, on one hand, we are legally entitled to make copies of things we purchase. On the other hand, we are now breaking the law if making copies involves defeating DRM solutions. This system is obviously flawed.

As I indicated in the previous issue, fair use was delivered yet another defeat when 321 Studios became legally required to stop distributing its DVD X Copy software, which circumvents CSS codes designed to copy protect DVDs in order to make backup copies of those DVDs. A judgment against 321 Studios stacks the odds against all DVD copying solutions. At least in the United States, it is very likely consumers will be forced to choose between breaking the law in order to exercise fair use or accept the fact that fair use is no longer fair.

A third solution exists. Getting our government to redefine what constitutes fair use under the scope of the DMCA. Redefining fair use will only happen if We the People get involved and inform our government representatives we find these restrictions to be unfair. The United States Congress needs to know we will vote for people who do understand the importance of this issue., a site dedicated to helping protect consumer rights, is making this easier. Thursday March 4, 2004 is day 4 of their Fight For Fair Use week. In my opinion, March 4 is the most important day of this campaign, because it is the day they assist We the People in sending e-mails and faxes to our representatives in Congress, letting them know how we feel about fair use and the DMCA.

If you prefer contacting the appropriate parties directly, both the House and Senate provide a directory of email, mail, and phone contact information for all members.

Jake Ludington