How Do You Define Fair Use?

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With the advent of Digital Rights Management, exercising fair use has gotten a lot more difficult for consumers. For instance, whereas analog VHS tapes could be copied fairly easily with off-the-shelf equipment, Blu-Ray discs are protected with strong encryption that until recently could not be broken. In many cases, DRM prevents media files from being duplicated or altered in any way, even for purposes that would otherwise be legitimate. Because of DRM, consumers who simply wish to make a backup copy of a movie they bought must resort to complicated hacks.

Yet perhaps an even greater obstacle to fair use than Digital Rights Management itself is the 1998 Digital Millenium Copyright Act. Among the DMCA’s provisions is a section commonly known as the “Anti-Circumvention Clause,” which makes illegal any devices or technologies capable of circumventing copy-protection systems. Because legitimate business cannot design software that allows consumers to backup or time-shift content without running afoul of the DMCA, even relatively trivial encryption may, from a consumer’s point of view, render a movie impossible to backup. As it stands, anyone wishing to copy a DVD cannot do so without first acquiring illegal software, even when the reason for the copying falls under fair use.