TechLaw Journal: Rep. Rick Boucher of Virginia on the DMCA and Fair Use Doctrine

“The time, in my opinion, has come, for the Congress to reaffirm
the fair use doctrine, and to bolster specific fair use rights,
which are now at risk. In 1998, responding to the concerns of
copyright owners, Congress passed the Digital Millennium Copyright
Act. The announced purpose was to protect from piracy copyrighted
material in an environment which poses special concerns for
copyright owners. They made the point that with digital
technology, a copy of a copy of a copy has the same clarity and
perfection as the original of the work. They also made the point
that in the networked environment, with the single click of a
mouse, thousands of those perfect copies can be sent people
throughout the nation and the world.”

“The DMCA is the result of the effort by Congress to respond
to those realities. There are some today who believe that the
legislation went too far. For example, it creates, in Section
1201(a), a new crime of circumventing a technological protection
measure, that guards access to a copyrighted work. Under Section
1201, the purpose of the circumvention is immaterial. It is a crime
to circumvent the password or other gateway, even for the purpose
of exercising fair use rights. There is no requirement that the
circumvention be for the purpose of infringing the copyrights. Any
act of circumvention, without the consent of the copyright owner,
is made criminal under Section 1201.”

“Some now foresee a time when virtually all new material will be
sent to libraries on CD ROMs, with the material encrypted or
guarded by passwords. In exchange for a fee for each viewing, the
password may then be used. And so it is predicted that under
Section 1201, what is available today on the library shelves for
free will be available on a pay per use basis only. The student who
wants even the most basic access to material to write his term
paper will have to pay for each item that he uses.””

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