Rick Boucher is at it again. A few years ago he gave us the Music Online Choice Act (MOCA), a bill that would have imposed compulsory licensing on the digital music market because it was so obvious that studios were going to dominate that market; hey, notice all the download services are independent of studios, and iTunes even has the market power to dictate retail price? Now he is back and has joined with John Doolittle to introduce the FAIR USE Act of 2007. This is Boucher's latest iteration of his legislation to gut the DMCA, which he first introduced before the DMCA became law almost 10 years ago. This bill is at best unnecessary and at worst dangerous. Absolutely no part of the bill respects the rights of creators to designate through the market which rights will convey with their creations.

Boucher says in a statement that unless the law is changed, consumers will be less inclined to purchase digital media out of fear that they won't be able to fully use it in their homes. But new opportunities for legally authorized home use are emerging on the market every day. Music, movie and videogame producers want their works to be enjoyed by consumers; if they hear consumers demand more flexibility of use, they will provide it, legally.

The exemptions issued by the US Copyright Office are part of the triennial rulemaking process of the DMCA. There is no need for Congress to codify the latest exemptions, and there is certainly no reason for Boucher and Doolittle to assume the place of the Copyright Office and add to the list of exemptions. I would invite Boucher and Doolittle to file petitions in the next triennial rulemaking.

The bill would also seek to undermine a 9-0 decision by the US Supreme Court in MGM v. Grokster, attempting to dilute a true victory for artists and creators. In fact, the entire bill aims to dilute the rights of creators in numerous ways, while posing as a pro-consumer bill. Consumers don't need politicians to provide them with goods and services; they can apply pressure in the market to get what they'd like to purchase.

If Congress is to open up the DMCA for revision -- and I do not propose this occur -- then they should look at revising Sec. 512. That section contains what was meant to be a narrow liability exemption for Internet service providers such that ISPs aren't liable for copyright infringement on their networks if they take down any infringing material when notified. That exemption has been claimed by web sites such as YouTube that in no way resemble an ISP, web sites that have a much clearer understanding of what they are hosting than a traditional ISP. It has created a situation where these ISPs can amass huge volumes of infringing material and expect the creators to insist on its removal, shifting copyright from an opt-in system to an opt-out system. This is intolerable. Perhaps Boucher and Doolittle could introduce a bill clarifying that Sec. 512 applies only to traditional ISPs. In the meantime, you can attend a PFF Congressional Seminar on the Sec. 512 issue.