(This post was substantially updated on February 28th.)

Democratic Representative Rick Boucher (from Virginia’s 4th district — the fightin’ 4th!) has joined with California Republican John Doolittle to send to the House HR 1201, the “Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007.” Get the acronym? The bill, available at EFF (a thanks to Miguel for pointing this out), is described as an amendment to the Digital Millennium Copyright Act. The DMCA, for those who don’t know, makes it illegal to circumvent technical protection measures that lock up digital content. The DMCA claims that its provisions should not constrain our ability to make fair use of protected content, but evidence plainly suggests that it does. As Boucher’s press release puts it,

“The fair use doctrine is threatened today as never before. Historically, the nation’s copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public’s right to fair use,” Boucher said. “The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work,” Boucher explained.

This is certainly not new terrain for Boucher, who sponsored similar bills in 2003 and 2005, then titled the “Digital Media Consumer’s Rights Act”. Boucher has been a persistent critic of the “copyright maximalist” approach espoused by the major U.S. content industries and by most of his Congressional colleagues.

Boucher has once again pursued his legislative strategy of cloaking big changes inside of what looks like smaller potatoes. The older versions of the bill cleverly focused on a small issue (requiring CDs with copy protection to be labeled as such) but slipped in two bold statements at the end — that would allow circumvention for fair uses and allow circumvention tools capable of substantial noninfringing uses (a rendition of the Sony standard that many have argued is dead and gone in the Internet age). This time around, the bill claims that it is largely ratifying exceptions to the DMCA already put forth in the rulemaking of the Librarian of Congress and the Copyright Office: allowing users to skip commercials or objectionable content, to transmit content across a home network, to gain access to work that has fallen into the public domain and most recently, allowing librarians and educators to circumvent to make compilations for educational purposes. (Why, thank you. If only I had the legal tools to do it.) The new bill would put these exceptions into law, and add one to allow libraries to circumvent technical protections when an original is lost or damaged.

But in and amidst these exceptions is one that did not appear in the Copyright Office’s rulemaking, in fact one they specifically rejected:

The prohibition contained in subparagraph (A) [of the DMCA] shall not apply to… an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research

This represents a reasonably serious attempt to put the language of fair use explicitly into the law anti-circumvention. Of course, the DMCA already says it should not inhibit fair use, and this exception still doesn’t deal with the problem of how one might make a fair use if the tools to do so are illegal. But the gesture of saying it out loud as an affirmative protection is arguably a big deal. Interestingly, Boucher’s press release suggests that the bill will does not create a fair use exception — more cover?

The FAIR USE Act differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively, by Representatives Boucher and Doolittle. In an effort to address the concerns expressed by content owners, the FAIR USE Act does not contain provisions which would have established a fair use defense to the act of circumvention.

There is also a provision limiting liability for technologies:

No person shall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device that is capable of substantial, commercially significant noninfringing use.

Some will argue is a revival of the Sony standard, but notice it only applies to hardware, not software. Problematic.

To focus on ratifing the exceptions already put into place by the Copyright Office seems to me a sign that Boucher and Doolittle want this bill to pass, to seem like mere legislative housecleaning. The bill has the support not only of the American Library Association and the Home Recording Rights Coalition, but also the Consumer Electronics Association and the Computer & Communications Industry Association — perhaps because of the emphasis on technical innovation. The bill may have its best chance yet to pass, though my guess is it’s still unlikely. But would it be a substantive victory if it passed, (at least symbolically) reasserting fair use for the digital age, or a merely pyrrhic one, an empty gesture that again says fair use should be honored, but still not daring to make the tools it would require legal?