The PRO-IP act, a bill introduced in December 2007 that
vastly strengthens intellectual property protections, may see Fair Use provisions
added if one Congressman gets his way.
Formally called H.R. 4279, the PRO-IP or “Prioritizing
Resources and Organization for Intellectual Property” Act of 2007 reprioritizes Department of Justice resources towards copyright enforcement,
and among other things, adds copyright infringement to the criteria for involvement of the DoJ’s computer crimes unit. Written in large
part by NBC Universal attorney Rick Cotton, the bill enjoys heavy support from Hollywood
content producers – and fierce resistance from Fair Use advocates, who consider
the bill overreaching and “gluttonous.”
The PRO-IP act is expansive in its scope, even after its contentious
“compilation” section – which allows industry members to seek damages per song, instead of
per album – was stripped out
earlier this month.
The EFF called the PRO-IP act a “one-way ratchet” proposal
that “amplifies copyright without protecting innovators or technology users.”
Now, Congressman Rick Boucher says he has a plan
to add his own provisions to the PRO-IP Act, which is working Congress as the H.R. 1201 FAIR USE Act
of 2007. H.R. 1201 contains a series of provisions designed to restore a
more complete vision of Fair Use to the DMCA, which currently forbids
circumventing DRM even in cases of fair use. By legalizing the circumvention of
DRM for someone who is “engaging in a non-infringing use,” the FAIR USE Act
seeks to legally protect actions like skipping past TV commercials or transmitting
files through a home network – both increasingly common activities among today’s
media consumers.
The FAIR USE Act certainly has its critics: Hollywood viciously
opposes the bill due to fears “that
any loophole … would open the door to piracy,” and a few have pointed out
that perhaps the bill’s exceptions are not expansive enough.
Combining the two bills could create what Ars Technica calls a “PRO-IP/FAIR
USE Act Frankenstein's monster,” and if implemented, could see the PRO-IP
act alienated from its Hollywood backers.
Boucher, an ardent Fair Use supporter, initially seemed to
have shelved his plans after the PRO-IP recently passed a House committee
vote without any additions. However, speaking at a Media Institute luncheon, he
told his audience that he is still in discussions to advance “some parts or all
of 1201 in conjunction with other IP measures … as part of a package.”
However, even Boucher has doubts: “It would be, I think,
probably the most difficult bill we could consider this year because of all the
controversy and opposition it would attract,” he said. “I'm not even sure what
I think of the idea yet. At this point, we're having discussions about a
package but I haven't signed off on anything yet.”
“I am trying to preserve fair use,” said Boucher. “With the
passage of the DMCA, the possibility of the complete abolition of fair use now
exists. It gives companies that power to lock up their content forever and
prevent anyone from accessing it in any way that they don't approve. And one
thing I've learned in the quarter century I've spent [in Congress] is that
power once granted will be used. I have no doubt that within a few years we'll
see companies taking steps to effectively cut off all fair use, unless we
change the law.”