RE: A thought about S. 2037--anticircumvention & fair use

[Laurel Jamtgaard <laurelj@arl.org>]

On Thu, 18 Jun 1998, Terry Cullen wrote:

> S. 2037 is not quite as bad a bill as H.R. 2281, to my mind.  It at least
> acknowledges the fair use defense, ...

Nope. Actually that provision (1201(d)) does not apply fair use principles
to the new access right. The new right created in 1201(a)(1) is not one of
those listed in Section 106 of the Copyright Act to which the
limits in Sections 107 to 120 (including fair use defense) apply.  
At this late hour some are trying to get an amendment through that will
correct this, but are facing opposition. (There seem to be those out
there who have little regard for the fair use defense.)  In today's
sub-committee markup on the bill, the argument was raised that the
absence of a fair use defense to the new access right might be
unconstitutional. (My hope is that the bill gets fixed so we don't have to
wait for a drawn out court battle on this point.)

>[S.2037] has an innocent violator/library exemption, 

Partially. Let me try to clarify on this one too.  The "library exemption"
only applies to circumvention for puposes of deciding whether or not to
purchase the product.  There is no "innocent violator" exemption that I
see in the bill. 

> and no criminal penalties for noncommercial circumvention.  

The criminal penalties do not apply to nonprofit libraries, archives or
educational institutions but I do not see any general provision
excluding all "noncommercial" circumventions from criminal liability. 

There seem to be some changes coming out of the Commerce committee in this
next week.  Let's hope that fair use gets a foot in the door.  If you are
concerned on this issue, call your Representative.  Especially if they are
on the Commerce committee.  Calls matter.


Laurel

   Laurel Jamtgaard
   Policy Analyst to:
     Association of Research Libraries 
     Special Libraries Association
       202.296.2296  FAX:202.872.0884   laurelj@arl.org