February 27, 2007 | By Derek Slater

Action Alert - Support the FAIR USE Act!

Reps. Rick Boucher and John Doolittle's FAIR USE Act [PDF] would remove some of the entertainment industry's most draconian anti-innovation weapons and chip away at the Digital Millennium Copyright Act's (DMCA) broad restrictions on fair use. Take action now and tell Congress to help restore balance in copyright now.

Technology companies play a game of Russian roulette whenever they create products with both infringing and non-infringing uses. Current "secondary liability" standards don't provide enough certainty, and if innovators guess wrong, they can be hit with statutory damages as high as $30,000 per work infringed. When it comes to mass-market products like the iPod or TiVo, damages could run into the trillions of dollars -- more than enough to bankrupt anyone from the smallest start-ups to the biggest companies. Unlike in other areas, the private assets of corporate officers, directors and investors are not shielded from liability in copyright cases.

The FAIR USE Act would limit the availability of statutory damages for secondary liability and allow innovators to make more reasonable business decisions about manageable levels of legal risk. Meanwhile, copyright owners could still get injunctions and actual damages for harm suffered, putting them in no worse a position than civil litigants in most other areas.

The bill would also codify the Supreme Court's "Betamax doctrine" as it pertains to hardware devices, making clear that manufacturers cannot be held liable based on the design of technologies with substantial non-infringing uses.

Finally, the bill would loosen the grip of the DMCA, which restricts circumvention of digital rights management (DRM) restrictions even for lawful uses. The FAIR Use Act adds 12 exemptions, including the ability to circumvent for classic fair use purposes like news reporting, research, commentary, and criticism.

Broader DMCA and copyright reform remains absolutely necessary, but if passed this bill would be a big first step in the right direction. Tell your representatives to support it now.

For more information, read the bill here, and check out this EFF article from last year discussing statutory damages and proposing their elimination in secondary liability cases.

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