Rep. Lofgren Introduces Digital Fair Use Bill

October 2, 2002. Rep. Zoe Lofgren (D-CA) introduced a bill titled the Digital Choice and Freedom Act of 2002. This bill would broadly expand the rights of persons who lawfully acquire digital copies of copyrighted works, while diminishing the rights of copyright holders.

Basically, the bill does five things. First, the bill adds a reference to "analog or digital transmissions" to  107 (the fair use section) of the Copyright Act. Second, the bill creates a new  123 in the Copyright Act that limits the basic exclusive rights of  106. This new section allows copying of lawfully obtained copies for storage, or for use on a preferred digital media device. Third, the bill limits the enforceability of non-negotiable license terms. Fourth, the bill expands the  109 right of sale to digital works. Fifth, the bill limits the anti circumvention provisions of the Digital Millennium Copyright Act (DMCA).

"Enhancing consumer rights and technology development are the key to copyright protection," said Rep. Lofgren (at right) in a release. "We need innovative technologies to help the consumer stay within the limits of the law and to protect the rights of copyright holders. I believe Silicon Valley is poised to work with consumers and the entertainment industry to create the needed balance for the digital world."

Fair Use. The bill revises the opening sentence of  107 by adding the clause "and by analog or digital transmissions". As amended by the bill,  107 would read: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section and by analog or digital transmissions, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."  107 then goes on to state the four part test of what constitutes fair use.

Expanded Copying Rights. The bills allows those with lawfully obtained copies or phonorecords of digital works "to reproduce, store, adapt or access the digital work" either "for archival purposes" or "to perform or display the work ... on a preferred digital media device, provided that such performance or display is not public".

Limitation Upon Non-Negotiable Terms. The bill does not use the term "shrink wrap license". Nor does it refer to "EULA" or "End User License Agreement". Rather, it provides that "When a digital work is distributed to the public subject to non-negotiable license terms, such terms shall not be enforceable under the common laws or statutes of any State to the extent that they restrict or limit any of the limitations on exclusive rights under this title."

The use of the word "title", as opposed to "section", is significant. The word "title" refers to "Title 17", which is the entire Copyright Act. The word "section" would refer only to the new  123 that would be created by this bill.  106 states the basic exclusive rights of copyright holders. Then,  107-121 place limits these  106 rights. There is  107 pertaining to fair use,  109 pertaining to sales,  110(1) pertaining to educational institutions,  111 pertaining to secondary transmissions,  112 pertaining to emphemeral recordings, and so forth.

This bill would limit the enforceability of non-negotiable license terms in contracts that purport to waive any of these limitations, not just the limitations created by Rep. Lofgren's bill.

John Mitchell, Legal Director of Public Knowledge, stated in a release praising the bill that "We don't allow employers to require new hires to waive their legal rights under employment laws, and neither should we allow copyright owners to use EULAs and technological gimmicks to make consumers waive their legal rights under copyright law."

Sale.  109 currently limits the exclusive rights of  106 with respect to the sale of certain copies. For example, if one buys a book in a bookstore, one can latter sell that book to someone else, without obtaining permission from the copyright holder. However, nothing in  109 expressly extends this right of sale to copyrighted digital content acquired online.

Rep. Lofgren's bill would add a new subsection (f), that provides: "The privileges prescribed by subsections (a) and (c) apply where the owner of a particular copy or phonorecord of a work in a digital or other non-analog format, or any person authorized by such owner, sells or otherwise disposes of the work by means of a transmission to a single recipient, provided that the owner does not retain his or her copy or phonorecord in a retrievable form and that the copy or phonorecord is sold or otherwise disposed of in its original format."

Modification of Anti Circumvention Provisions of DMCA. Rep. Lofgren's bill would substantially rewrite  1201, which was added to the Copyright Act by the DMCA.

First, it adds language stating that "a person who lawfully obtains a copy or phonorecord of a work, or who lawfully receives a transmission of a work, may circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if (A) such act is necessary to make a non-infringing use under this title; and (B) the copyright owner fails to make publicly available the necessary means to perform such non-infringing use without additional cost or burden to such person."

Second, it adds language permitting circumvention technologies. It states that "any person may manufacture, import, offer to the public, provide, or otherwise make available technological means to circumvent a technological measure that effectively controls access or protects a right of a copyright holder under this title if (A) such means are necessary to enable a non-infringing use ... ; (B) such means are designed, produced and marketed to enable a non-infringing use ... ; and (C) the copyright owner fails to make available the necessary means ..."

Nevertheless, any such technological means would then be available for use both by persons engaging in non-infringing uses, and by persons engaging in infringing uses.

Scope of Bill. For the purposes of this new  123, Lofgren's bill would exempt "computer program". Rep. Lofgren represents a Silicon Valley congressional district. Thus, the bill does not limit the copyright interests in software, or the shrink wrap license or EULA practices, of her constituents. The bill does, however, limit the copyright interests of the movie and music industries, which have a strong presence in the Los Angeles area.

Rep. Howard Berman (D-CA) represents a Los Angeles area district, and has introduced a bill, HR 5211, that would bolster the ability of the movie and record industries to protect their copyrighted digital content from infringement on peer to peer networks, by allowing certain self help remedies.

Rep. Lofgren's introduction of her bill follows Rep. Berman's introduction of his bill by two months. Both bills are similar in that their sponsors seek to address what they perceive to be problems with the legal regime affecting digital entertainment media, particularly sound recordings and movies. Similarly, the language of both bills is far broader that their basic purposes. That is, Rep. Berman's does not limit copyright claimants to exercising self help remedies solely against those who pirate songs and movies. It allows them to pursue to anything on a peer to peer network. Hence, it could be used to suppress political, religious or commercial expression, where that expression includes copyrighted works.

Similarly, Rep. Lofgren's bill places limits on the protection afforded by  106, not only for record companies and movie studios (which have come under criticism for their practices), but also for newspapers, magazines, book publishers, and others who publish in digital format (who have not come under the same criticism for their practices).

While Rep. Lofgren's bill states that its purpose is "To safeguard the rights and expectations of consumers who lawfully obtain digital entertainment", the language of the bill extends to any "digital work", which would include, as well, literature, art, news, science, educational materials, and other subjects far afield from entertainment.