H.R. 1201: Candygram or Landshark?

The authors of H.R. 1201, the "Fair Use Act," Reps. Boucher and Doolittle, claim that it "differs fundamentally" from versions of the bill introduced in previous Congresses.  In particular, they say this bill responds to copyright owners concerns by no longer allowing circumvention of technological protection measures(TPM) for purposes of making a fair use.  As I read their statement, I couldn’t help but think of the 70’s SNL "Candygram" skit where the cunning lanshark would use various disguises, including a candygram, to trick its victims into opening the door.

Section 3(b)of H.R. 1201 would exempt from the DMCA’s prohibitions against the act of circumventing TPMs  "circumention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or reasearch;…"  But, Section 107 of the Copyright Act lists "…criticism, comment, news reporting, teaching,… scholarship or reasearch"  as fair uses of copyrighted works.  So instead of saying "for purposes of making fair use" this time the bill lists it out. "Candygram"

The only differnce in this version is the supposed limitation on acts of circumvention to just those necessary to gain access to works of "substantial public interest."  With no definition of the term provided, it is essentially limitless. An argument could be made that any work is one of substantial public interest. "Candygram"

Just like previous versions, H.R. 1201 would allow circumvention for making purposes of making fair use to virtually all copyrighted works protected by TPMs in the digital environment.  Once again, the authors of the bill have offered an exemption which would essentially leave the protections of the DMCA worthless for copyright owners.  H.R. 1201 is just a lanshark in disguise!