Evidently there’s a whole lot more crap in the broadcast flag bill now being considered in Congress. The EFF has dug up a little provision in the law which essentially will scrap the entire concept of fair use under our current copyright laws.
Instead, the big media companies want to substitute the idea of “customary historic use”. In other words, how consumers use the media they pay for, would be limited by the FCC’s interpretation of how such programs had been used in the past.
Had that been the law in 1970, there would never have been a VCR. Had it been the law in 1990, no TiVo. In 2000, no iPod.
Fair use has always been a forward-looking doctrine. It was meant to leave room for new uses, not merely “customary historic uses.” Sony was entitled to build the VCR first, and resolve the fair use questions in court later. This arrangement has worked well for all involved — consumers, media moguls, and high technology companies.
Now the RIAA and MPAA want to betray that legacy by passing laws that will regulate new technologies in advance and freeze fair use forever. If it wasn’t a “customary historic use,” federal regulators will be empowered to ban the feature, prohibiting innovators from offering it. If the feature is banned, courts will never have an opportunity to pass on whether the activity is a fair use.
Voila, fair use is frozen in time. We’ll continue to have devices that ape the VCRs and cassette decks of the past, but new gizmos will have to be submitted to the FCC for approval, where MPAA and RIAA lobbyists can kill it in the crib.
The only innovation Congress is interested in is how to get the checks from lobbyists into the bank faster.