BREAKING: ECA Takes a Stand on Fair Use, Disses DMCA

October 26, 2007 -

Gamers, the Entertainment Consumers Association officially has your back.

Later today the ECA will announce its support for HR1201, known as the Fair Use Act of 2007. The move represents the ECA's first foray into the legislative arena.

HR1201 was originally introduced in Congress by Rep. Rick Boucher (D-VA) and co-sponsored by Rep. Charlie Wyatt (R-CA) and Rep. Zoe Lofgren (D-CA). The proposed legislation seeks to restore the historical balance in copyright law and return to consumers many of the fair use rights lost with the 1998 passage of the Digital Millennium Copyright Act (DMCA).

As a practical matter, the DMCA has been wielded like a club against consumers by corporate interests such as the RIAA, MPAA and Entertainment Software Association (ESA), which represents U.S. video game publishers. (see: Fear & Loathing Over Feds' Mod Chip Sting)

Of his proposal to modify the consumer-unfriendly DMCA, Rep. Boucher writes:

For example, under [the consumer-oriented] bill a user may circumvent an access control on an electronic book he purchased for the purpose of reading it on a different electronic reader.

Circumventing access control? Why, that could mean bypassing the region code lockout to play a Japanese game release on your modded console, and what's so bad about that? Nothing, except that under the DMCA, you're a criminal. Say hello to the friendly federal agent knocking at your door.

Of the move, ECA president Hal Halpin (top left) said:

We understand and respect the careful balance that must exist between the rights of copyright owners and the rights of consumers of copyrighted material. We believe in the protection of intellectual property while maintaining consumers’ rights, and ability to lawfully use acquired media for non-commercial purposes. Additionally, digital rights issues should be subject to private sector inter-industry resolution rather than government imposed intervention.

Rep. Boucher (left), sponsor of the Fair Use Act, added:

The fair use doctrine is threatened today as never before.  Historically, the nation’s copyright laws have reflected a carefully calibrated balance between the rights of copyright owners and the rights of the users of copyrighted material. 

We have introduced the Fair Use Act to restore this balance, and correct the Fair Use disparities created by the DMCA.  I am thrilled to enlist the support of the ECA in this effort to ensure 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.

GP: For those gamers who have been waiting to see what the ECA is all about, here's the answer - or at least the beginning of the answer. I'm really proud to see the organization take a stand like this on behalf of game consumers, a stand that is 180 degrees from the position of the video game industry.

Full Disclosure Dept: The ECA is the parent company of GamePolitics.  


@E. Zachary Knight

A deal it is. I'll pick up a "sixer" of IBC, which is the undisputed king (hyperoble) of commercially distributed root beer (and my favorite beverage of all time).

@ GameDevMich

A man with fine taste in Roobeer. IBC rules all others drool. ;)

Ach! RooTbeer. not roobeer.

Reestablishes Betamax Standard. The DMCRA also would specify that it is not a violation of Section 1201 of the DMCA to manufacture, distribute, or make non-infringing use of a hardware or software product capable of enabling significant non-infringing use of a copyrighted work.


This part has always bugged me about the DMCA. Their excuse about encryption was that it was only to protect against illegal copying. But then they went and made any copying under fair use (say for educational purposes) illegal as well.

the bill directs the Federal Trade Commission to ensure that adequate labeling [of "Copy-Protected Compact Discs"] occurs for the benefit of consumers.

Again, WOOT! Nothing pisses me off more than getting home, unwraping the case, popping the CD into my player, and finding out that in a weak attempt to stop some guy in China, the CD won't work. And then you get the "no returns of opened CDs" policies you then have to fight through... If I had seen a label on the outside of the case warning that it was copy-protected and wouldn't work, I wouldn't have bought the bloody thing in the first place...


I have doubts this will pass. Big industry already has Congress thinking that piracy is worse than murder...

Especially up here in Canada. Where they fudged some piracy numbers, and then quoted an RCMP report... that quoted those fudged numbers. They then pretended that the RCMP had come up with those 'facts'.
-- If your wiimote goes snicker-snack, check your wrist-strap...

@ Jabrwock

Yes this will have have a difficult run, but if the right organizations and enough people back it, it has a good chance of succeeding.

We just need to keep hounding our politicians on it.

@the thread's optimists

For what it's worth. I hope you guys are right. I would view ANY legislation granting/protecting additional consumer rights as at least a step in the right direction, although I still think it's unlikely at best that it will pass.

That being said, I still would like to know where the EFF stands on it. I still think that if the ECA is interested in doing more then just publicly endorsing it and telling us to whip out our emails; they ought to give the EFF a call. ECA's a baby on the block. EFF's been around 17 years. Seems to me that if they want an honest shot at passing the bill they need all the help they can get. That's not even including the fact that Bush has been a little veto-happy lately.

@jadedcritic - In regard to the EFF, I think that is a very smart idea.

EFFing wankers..

@Michael Perry

Unified front. If they can both agree to support this bill, they can publicly support it together. More voices. Besides, if anyone knows any consumer rights groups that fight more DMCA battles then the EFF, I'd certainly like to hear about it. If anyone has the experience to really evaluate this bill, it's them.

Now, I don't know enough about political activism to really know how (if at all) the ECA and EFF could work together; but what could it hurt to give them a call?

I think I will write my senators over this. Anyone know when this bill will be put up to a vote?

I knew I joined the ECA for a reason... Go Hal!

I hate to be a sour note here, but I have to say: This bill is just a good start.

Don't get me wrong - it's a great bill, and it corrects the most egregious short-term problems with DMCA. But it still leaves the unconscionably long copyright duration issue intact.

In this era of high-power communication, copyright should be getting shorter, not longer. It's absurd for something to be copyrighted for an author's entire lifetime, much less the current 140 year maximum possible under DMCA. This stifles creativity through preventing derivative and imitative works - even unintentional ones.

There needs to be strict limits on duration that involve how long the copyrighted product is in active production. It is absurd to think that something that was published in 1990 and went out of publication in 1995 is still unavailable to the public domain for another 130 years, even though nobody is actively using it.

D'oh. Forgot to close a tag somewhere. Fixed.

Or maybe I left several tags open... where is that EDIT button?

@ kurisu7885:

Just because Jack is an asshole doesn't mean he doesn't think DRM and criminalizing the circumvention of it is bullshit.

That said, I'm hoping for the best, but I doubt this will go anywhere. Boucher has introduced similar legislation that the 'intellectual property' mafias have squashed. And Hal was awesome until he started saying 'intellectual property'. Anyone who uses that term needs to be smacked, since it's nothing more than propaganda.

Gotta say - I'm looking at the bill - As I'm sure Jack will have no trouble pointing out - I'm not a lawyer - with that out of the way, it seems to me like the money portions are:

3 504(c)(2) of title 17, United States Code, is amended by
4 adding at the end the following: ‘‘The court shall remit
5 statutory damages for secondary infringement, except in
6 a case in which the copyright owner sustains the burden
7 of proving, and the court finds, that the act or acts consti8
tuting such secondary infringement were done under cir9
cumstances in which no reasonable person could have be10
lieved such conduct to be lawful.’’

under circumstances in which --> "no reasonable person could have believed such conduct to be lawful".

So all the defense needs to do in these cases is make a reasonable argument that a reasonable person might have believed it was OK?

(ooohhh, guys, the copyright police are gonna fight this tooth and nail).

Here's the other part that kind of jumped off the page at me

16 shall be liable for copyright infringement based on the de17
sign, manufacture, or distribution of a hardware device or
18 of a component of the device if the device is capable of
19 substantial, commercially significant noninfringing use.’’.

No person shall be liable for copyright infringement --->if the device is capable of substantial, commercially significant noninfringing use.

@ Everyone saying that we need to get the EFF's opinions on this:

Support the FAIR USE Act of 2007 @ EFF

Wow. OK - my last entry got a little cut off, but it has the important parts.

All I was saying is I don't compliment the ECA very often, but I will now. This is the first time I've seen them take a public stand on something, and it's a doozy (whistles).

@E.Zachary Knight

Oh bravo! Unified front. Kewl = )

@ Jadedcritic

My interpretation of the second part you quoted is that simply manufacturing, selling or possessing modchips does not automatically make you a criminal. They have to prove intent to infringe copyrights.

Right now the way that the DMCA is written is the same as making it illegal to make sell or possess locksmithing tools because car jackers and burgulers could use them to bypass locks.

Even with the copyright issue still standing, this is a great is a great start and it's great to finally see the ECA taking action in something other than the ratings/legislation issue. I feel a lot more inclined to support them now. ;)

It's about dang time!! If I get bored tonight I may just pen a letter to a couple representatives...


Does anybody know sources for things such as the statistics of pirated DVDs/Games from different industry groups (I do remember reading them together and noticing they had huge disparities)? I could also use a link to the Xbox 1 mod which expands its media functions (Xbox Media Center, I believe). I could use that information in my letters. These things may be common knowledge to us, but I doubt most senators or representatives would know these things.

There's a lot of fuzzy math when it comes to the numbers the MPAA, RIAA and ESA put out on the losses the industry has from illegal file sharing/copyright infringement and piracy. The bigger the number they can produce the better it looks for them. The actual amount of real losses is a fraction of their number. It's very simlar to Hollywood bookkeeping practices.

Also, they're all estimates, which is why there's such big differences between groups. One could say they lost 10 billion and another could say they lost 10 million and come up and each make their numbers look believable since there's no real way either can be proven or disproven, of course unless you look at the fine print on the typically higher numbers.

To take an opposing view:

"Raise the Jolly-Roger me buccoes!"
"It's open season fer we pirates, now they will ne'er find us - hiding under the guise of decent comsumers! (Just remember to leave your parrot at home!)"

Question: Why can't they (Congress) just repeal old laws that suck, instead passing new ones the counter-act those parts?


Congress can't repeal laws directly. In order to repeal a law, they have to pass new laws that revoke the old laws, in whole or in part. The only people who can strike down laws once they're on the books are judges, and only then for Constitutional reasons.

For proof of this, look at the 21st Amendment, the (nearly) sole purpose of which is to repeal the 18th Amendment.

Amendments are not quite the same as laws. Our stack-em-up approach to laws seem to be a relic of a bygone era of paper trails, that's all.

Good going hal its nice o see the ECA take a stand, I hope you can take the consumer friendly movement up a few notchs its been going nowhere fast!

heres how I see it the ratio of world populace that has a PC that can download and knows how to backup discs,games what not is so low the actual numbers are 10-30% of their 1.1 losses spew, for all we know they could be tossing in user market sales to trump up the numbers as well.

I believe there are losses but tis not quite the number they parade around others.


That was low man, really really low (a lot lower than he deserves)

Anyways this is surprising news to say the least. I'm glad that they are doing this but I wonder what they're motiviation was?


To counter your opposing argument, DRM and copy protection do not stop pirates. Ever. It may slow them down, but a good cracker can break any DRM in hours, and within months of a games release at most, it will be widely available through warez sites. Hell, DRM may encourage crackers just for the challenge.

The folks who made Galactic Civilizations said it best. They do not include copy protection because they are not marketing the game to pirates, they are marketing it to people who want to buy it, and they encourage legitimate purchase with easy patches, new content, and online gaming. Plus, if you lose the disk or get a new computer, you can just access your account with them and download a fresh backup. Check out Steam. It can be inconvenient, as the offline-playing is a nuisance to set up and you need a connection, but you do not need to worry about losing disks or CD-keys or turning your drive into a dongle.

Copyright owners need to go after the warez sites and the illegal distributors and not inconvenience legitimate consumers. All the copy protection and DRM encourages piracy as the purchased content may be inaccessible or attack your system (thank you Sony-BGM!).

@~the1jeffy: Actually, for most practical purposes, Amendments ARE the same as laws. The percentages needed to pass them are different, but that's about it.

Congress cannot just up and vote to repeal a law. That's not how the system works. Every item up for debate/vote on the floor of Congress starts as a bill, even attempts to overturn, repeal, or change existing laws.

OK, I realize I'm a little late to the party for this one, but bravo Hal!

I know this site is primarily about games and how the DMCA impacts it, but it has far-reaching effects on more than just games. Television and movies are also affected by this as well. Witness what happnened a couple weeks ago when Fox shut down fan screenings of Buffy the Vampire Slayer for example. Imagine having Paramount or Warner Bros. issuing a cease and desist to people for writing fanfics about their characters. (Then again, that may be partially a good thing considering how many bad fanfics there are out there!)

Anyway, my point is this isn't just about games, although that's the primary focus of discussion here. The DMCA is a bad idea all around that's been exploited and abused by losts of media companies. And I do plan on contacting my representatives about this as soon as I can.

To be fair, though, the only people who are going to be prosecuted for using mod chips are the people who use them to play AND SELL pirated games. How exactly is the government going to monitor your use of your modded PS2 to play import games? The answer is that they aren't going to.

Inevitably, while people pirating games gives mod chips a bad name, they are also the only people who end up getting "caught" as it were (since they were the people actually doing something wrong).

I'm not saying the DMCA doesn't need edited, it obviously does just for safety's sake, I'm just saying in the grand scheme of things, people using their modded consoles properly never needed to be afraid.

This is very good news. The DMCA stops legitimate uses beyond mod chips- like preservation of digital content or other activities that would likely be allowed with nondigital materials. Kudos to the ECA

@Baramos- the people who supply mod chips will also be affected, not just the people pirating games.

@Black Ice

::::unfurls the Red Banner::::

Anyone know the words for 'The International'?


You have eyes, yet you do not see. You have ears, yet you hear nothing. You have a head, yet it is filled with something resembling tapioca pudding. Scram junior, grown ups talking here.

This is really, really good to know.

Hat's off to Halpin.


You win :) The only reason I even tried to provide a counter-point is that this law will be attacked tooth and mail by the Big Media lobbying powerhouse, so we had better tailor our counter-points now. I will be sending faxes/emails to my Senators/Reps whenever this comes to a vote.

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