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When Circumvention is Necessary for Fair Use

by Mikki Barry

Copyright law was carved out of our fundamental rights system in order to provide artists, writers, and others with a mechanism by which they would be rewarded for their creations by preventing others from copying them for a period of time. This "copyright" has always been coupled with the consumer/user's right of "fair use" which, among other things, provides for users to make copies of the work for non commercial archival purposes, and recently, for the right to make a copy of works in order to "timeshift," or enjoy the works at times more convenient than the original performance.

Various distributors of copyrighted materials, notably the software, music and entertainment industries, have added mechanisms by which the user can no longer exercise their fair use rights by making archival copies or timeshifting performances. The Copyright office is now requesting comments regarding whether or not giving the user the right to circumvent these mechanisms is appropriate.

There is substantial evidence produced by software creators, music producers and the rest of the entertainment industry that copying and re-distributing copyrighted works causes harm to those industries in lost sales opportunities. However, that is not necessarily the real issue. The Copyright Office is attempting to determine whether or not as a user who has provided the producer with fees or other consideration, has the right to then make use of the product in accordance with current copyright laws.

An example that is close to my heart is timeshifting and archiving of high definition television signals. I pay DirecTV a substantial amount each month in order to watch high definition signals. DirecTV allows me to download these signals to timeshift via their digital video recorder device. However, the device will not allow me to archive the signals in the same format which they were saved. In order to archive the programming, it must be downgraded unless I circumvent the technology barriers to enjoy my fair use right.

A similar issue occurs when purchasing a DVD. The user pays a fee to view the content of the disc, but is prevented from viewing that content if they leave the country and use a DVD player that is native to their new country. They are also prevented from making an archival copy of the DVD that they have already paid for. The user would have to use circumvention technology in that case to even view the DVD that they have already paid for.

These industries have essentially "taken the law into their own hands" by denying the consumer the right to use fully paid up products as the law allows. While there is no doubt that circumvention technology COULD be used to make and distribute illegal copies of copyrighted materials, that is not the issue that is being addressed by this request for comments. Laws against illegal copying and distribution are already on the books, and are being enforced by harsh civil and criminal sanctions. Yet the consumer's use to unimpeded fair use of products they have paid for is ignored.

Once a consumer has complied with the fees required by the distributor, the consumer should then have all rights to use the product, including fair use rights. While the distributor should be allowed reasonable means to protect their investment from illegal copying, the consumer should be guaranteed their fair use rights that emanate from the very same Copyright Act that provides protection for the distributor. If circumvention technology is necessary to exercise those fair use rights, the consumer should have the right to use it, but only to the extent that s/he needs to archive, timeshift, or even (in the case of regional prohibitions with DVDs) use the product.

Mikki Barry has been a trademark and intellectual property attorney for technology and small business companies since 1991. For more information see www.mikkibarry.com. This article is not meant to be legal advice.

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