TechLaw

When the 110th Congress gets underway next year, it is a good bet that Rep. Rick Boucher will reintroduce his digital fair use bill. Hollywood has long resisted the measure, which excuses from DMCA liability the circumvention of digital locks where the underlying use is noninfringing. Proponents of the bill have often cited consumers' desire to make backup copies of fragile CDs and DVDs as an example of a legitimate use that would be tolerated by the legislation.

That example came under scrutiny in the Librarian's Nov. 22 rulemaking, a triennial review process in which the Library of Congress considers proposals for niche exemptions to the DMCA. In rejecting a proposed exemption for backup copies, the Librarian emphasized the risk of piracy inherent in an any such exemption:

The unauthorized reproduction of DVDs is already a critical problem facing the motion picture industry. Creating an exemption to satisfy the concern that a DVD may become damaged would sanction widespread circumvention to facilitate reproduction for works that are currently functioning properly.

The Librarian further stated that the Register of Copyrights found "no authority" (apart from a provision dealing with software) that supported the proposition that making backup copies is a fair use.

Of course, Boucher's bill does not rise or fall on this one example. But the Librarian's remarks do diminish the force of an argument that has proven somewhat effective in rallying support for the digital fair use bill.