ECA crosses ESA on DMCA

Gamer group picks first legal fight by supporting Fair Use Act, intended to roll back changes made by Digital Millennium Copyright Act.

Earlier this month, the Entertainment Consumers Association announced that it would be boosting its lobbying efforts and hired former Entertainment Software Association attorney Jennifer Mercurio to head its government affairs operations.

Today the ECA announced the first issue it would tackle, and the decision is pitting Mercurio squarely against her former employer. The consumer group has come out in support of H.R. 1201, also known as the Fair Use Act of 2007, a bill seeking to revise portions of the Digital Millennium Copyright Act (DMCA).

If it became law, the Fair Use Act would create a variety of exemptions to the DMCA's prohibitions on circumventing antipiracy measures. The Fair Use Act would make it legal to bypass antipiracy measures in a handful of situations: for personal archiving; for researching, critiquing, or reporting on works of substantial public interest (if that is the sole reason for the circumvention); or to skip commercial or personally objectionable content. It would also create an exemption in copyright law for people who make and distribute equipment used to bypass copyright protection (such as mod chips), provided that the device "is capable of substantial, commercially significant noninfringing use."

"We understand and respect the careful balance that must exist between the rights of copyright owners and the rights of consumers of copyrighted material," ECA president Hal Halpin said in a statement. "We believe in the protection of intellectual property while maintaining consumers' rights, and ability to lawfully use acquired media for noncommercial purposes. Additionally, digital rights issues should be subject to private-sector interindustry resolution rather than government-imposed intervention."

The ESA has firmly established itself in the pro-DMCA camp, promising on its Web site that "legislative efforts to weaken the DMCA will continue to be vigorously opposed by ESA and others in the copyright community." Antipiracy issues are also at the forefront of the ESA's federal lobbying agenda, which the group spends more than $2 million on annually.

"We actually do support the legally defined concept of fair use," ESA representative Dan Hewitt told GameSpot. "The way that Hal is using it is actually a distortion of what fair use is, if they're using it as a defense for changing what is currently legally understood as the fair-use doctrine."

22 Comments

  • matrixman2k

    Posted Oct 29, 2007 4:39 pm PT

    Yeah, and ... that would let the cat out of the bag and .... and .... nah, can't be bothered with this subject.

    Look, we'll just let the wheels of fortune (or the cogs of faith) turn and run it's course. Don't care either way. Obviously if you're not into anything dodgy, it won't matter.

  • Devvy01

    Posted Oct 28, 2007 9:50 pm PT

    so that means that every single person who uses a laptops, mobiles, Ipods will lose their capability to copy their OWN music, pictures, games after a certain frequency of installs. yep BOLLOCKS!

  • LinkBOX

    Posted Oct 28, 2007 5:05 pm PT

    Not that i'm condoning for illicit activities....


    but if the ESA wins it means that pirates will not have any means to legally pirate their games, and we get less freedom. I am agaisnt the DMCA in such case because i think that we should be able to "bypass antipiracy measures in a handful of situations: for personal archiving; for researching, critiquing, or reporting on works of substantial public interest (if that is the sole reason for the circumvention); or to skip commercial or personally objectionable content." especially that last part; I hate the fact that I have to see a freaking nVidia ad every time I play Game when im an ATI boi myself.

  • DarkGord

    Posted Oct 27, 2007 11:21 pm PT

    Hope they succeed! I don't look forward to more games pulling the BS that BioShock PC did. Took the pirates only 9 days to have it cracked, while legit users are stuck with lost activations even with the released crappy revocation tool!

  • Iriseon

    Posted Oct 27, 2007 2:25 am PT

    This article is very well written. It summarizes the issue very clearly. What is not so clear is the quote by ECA president Hal Halpin: "digital rights issues should be subject to private-sector interindustry resolution rather than government-imposed intervention."

    Heavy-handed legislation to protect IPs and profits are not pretty, but neither are interindustry DRM solutions like StarForce. (See also: Bioshock launch. See also: Vista reactivation for hardware/driver updates) Cognitive dissonance among consumers tends to be proportional to companies' nickel & dime zealotry. Two cents.

  • Stiler

    Posted Oct 26, 2007 9:29 pm PT

    :
    lamprey263

    I wonder what "personal archiving" entails?


    It would be like for example, taking a game/dvd or such and making a copy of it then storying it away for keeping it safe/incase your disc breaks or vice versa, I'd assume. I hope the ECA wins this with the other people involved.

  • MasterChief725

    Posted Oct 26, 2007 6:41 pm PT

    wow....more legal stuff...oh boy

  • brianpoetzel

    Posted Oct 26, 2007 3:50 pm PT

    "The fact that I can only ever re-install Bioshock 4 more times is something I find really frustrating "

    I hear ya teirdome. I installed bioshock on my pc twice now. I'm the kind of guy who uninstalls a game after I'm done with it. I'll reinstall it at a later date if and when I feel like picking it up again. I have some games that I've installed and uninstalled 5 or more times. And that doesn't include re-formats and clean installs which I like to do every so often.

  • lamprey263

    Posted Oct 26, 2007 1:48 pm PT

    I wonder what "personal archiving" entails?

  • DonutTrooper

    Posted Oct 26, 2007 1:47 pm PT

    DMCA, ESA, RIAA, MPAA, what do they have in common? They don't know jack ****.

    The internet, while as big as it is, is still technically in its infancy. People have capitalized as well as cheated on it. In the response to the cheating (illegal downloading), those companies put out extremely vague rules that hurt more than help.

    Maybe people pirated Bioshock BECAUSE it was too ineffecient (Auto patch problem at release, install cap, high price). Fact is, they're not going to see sucess unless they lay off, instead of strangling the rest of us.

  • Giratina667

    Posted Oct 26, 2007 1:30 pm PT

    The ESA finally takes charge hmm...

  • Karmacodelc18

    Posted Oct 26, 2007 1:20 pm PT

    Whatever. The ESA is too strict. Bunch of stuck up people with corncobs shoved up thier poop chutes. I have a modded X-box (X-box one not 360 lol) and emulators on my PC and the way I figure it. It ain't illegal if I don't sell it. Besides I owned the games I play on emulators and put my money in quarter munchers....so the game companies got my dollars for them. To quote a great movie called Stripes...

    "Lighten up Francis"

  • teirdome

    Posted Oct 26, 2007 1:06 pm PT

    I can't see this every succeeding, but I wish it would.

    The fact that I can only ever re-install Bioshock 4 more times is something I find really frustrating and makes it clear that the consumer does not actually purchase a product, but a concept. The product we receive in DVD format is simply a bottled though that happens to be entertainment according to the current legislation. If we compare software to a corvette, basically we own both, but if the same legislation applies to the corvette we cannot do any body work nor ever look under the hood. There are concepts involved in the corvette that the end user is not allowed to modify or examine. It's just weird that the ons and offs on my hard drive aren't actually owned by me, but the owner of the copyright. It's my electricity that enabled them to be put there.

  • chakan2

    Posted Oct 26, 2007 1:05 pm PT

    "But anything created digitally (Models, textures, etc anything NOT a program, as the code is written) is not copyrightable."

    That's not true. Code can't be copyrighted. That's correct. However, digitial photos, textures, etc can be. If you need a real world example go to www.2advanced.com and look at their legal section. They do web design for a bunch of high profile clients, and they're always suing the balls off of people that steal their web design. All of their work is a) created on the computer, and b)held up by the legal system.

  • diablobasher

    Posted Oct 26, 2007 12:58 pm PT

    The main thing people need to remember here is that there is NO copyright law protecting digital content. Written content, yes, that's copyrighted, regardless of whether it's code, or binary, or a book.

    But anything created digitally (Models, textures, etc anything NOT a program, as the code is written) is not copyrightable.

    Which is very unfortunate, but nonetheless, the way things are.

  • Thanos_of_MW

    Posted Oct 26, 2007 12:53 pm PT

    @ brianpoetzel, I'm with you on this, but I call them "digital restrictions" not copyrights. Because that's what they are. When people ask me what DRM is, I tell them "Digital Restrictions Management" which is a better description of the initials. All they do is restrict your rights as a user and as you described so well, don't discourage pirates at all. I hope the law passes because the DMCA is a one sided law that only benefits corporations at the expense of the people. So much for a government for the people, by the people

  • McGregor

    Posted Oct 26, 2007 12:31 pm PT

    i wish people that just wanted to throw money away would throw some my way...i could use it.

  • brianpoetzel

    Posted Oct 26, 2007 12:22 pm PT

    I hate digital copyrights. All they do is hassle the paying customer, not the pirate. When games come out they're cracked almost immediately. But the paying customer is stuck jumping through the hoops of DRM. And they are often harmful to the users system and/or game stability. I'd like to get rid of them entirely, not just add in some "fair use" loophole.

  • chakan2

    Posted Oct 26, 2007 12:21 pm PT

    Nice...but this will never fly. Every software / hardware maker in the world will lobby against this (and since gov comes down to who has the most money, it's MS ftw and down with H.R. 1201)

  • Symphony_Six

    Posted Oct 26, 2007 12:19 pm PT

    doesnt matter hoe lax they make the law, theyll always find a way to persecute modders.

  • SinfulSpikey

    Posted Oct 26, 2007 12:03 pm PT

    ... Oh my god. And just when I thought that this, this... This orwellian, faschist law would never be challanged.

    Thank god.

  • ImError88

    Posted Oct 26, 2007 11:55 am PT

    So many letters.

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