Bill Sets Stage for Fair Use Battle

WASHINGTON — In a stage setting event for what promises to a bitter and bruising legislative battle next year, Congressmen Rick Boucher (D.-Va.) and John Doolittle (R.-Calif.) introduced a bill Thursday afternoon that would add fair use protections to U.S. copyright law and the 1998 Digital Millennium Copyright Act (DMCA) and would also impose tough labeling requirements on “copy-protected” CDs.

Maintaining that fair use rights are “severely threatened” with respect to the consumers of digital media, the legislators want to amend the DMCA to re-establish the so-called Betamax standard, which allows users to make additional copies of copyrighted material for home or personal use.

Currently, the DMCA specifically prohibits the circumvention of a technical protection measure guarding access to a copyrighted work even if the purpose of the circumvention is to exercise consumer fair use rights. Circumvention for the purpose of exercising fair use rights would be permitted under the Boucher-Doolittle legislation.

“Historically, the nation’s copyright laws have reflected a carefully calibrated balance between the rights of copyright holders and the rights of the users of copyrighted material,” Boucher said. “The DMCA dramatically tilted the copyright balance toward complete copyright protection at the expense of the fair use rights of the users of copyrighted material.”

Dubbed the Digital Media Consumers’ Rights Act, the legislation also amends the provisions of the DMCA which prohibit the manufacture, distribution or sale of technology which enables circumvention of the digital protection measures. Under current law, trafficking in those devices is a crime if the technology was primarily designed to be used for copyright infringement.

Boucher and Doolittle claim that legal standard is too vague to give manufacturers “confidence to introduce new products.” Their legislation would instead focus on whether or not the technology had substantial non-infringing uses and, if it did, the manufacture, distribution or sale of the product would be legal.

The bill would also direct the Federal Trade Commission to promulgate a regulation requiring that copy-protected CDs be properly and prominently labeled.

“We are not proposing to outlaw the introduction of copy-protected CDs. We, however, want to ensure that if copy-protected CDs are introduced in larger volumes, consumers will know what they are buying,” Doolittle said.

The legislation strikes a much different chord than a controversial anti-P2P bill drafted by Reps. Howard Berman (D-CA), who represents parts of Hollywood, Howard Coble (R-N.C.), Lamar Smith (R-TX), and Robert Wexler (D-FL). That bill allows for the use of interdiction including redirection, decoys, spoofing and file blocking in protecting copyrighted files.

The Boucher-Doolittle legislation comes one day after Silicon Valley Congresswoman Zoe Lofgren (D-CA) introduced her “Digital Choice and Freedom Act of 2002,” (DCFA). Similar to Boucher and Doolittle’s bill, the proposal also claims “fair use” and aims to protect a consumer’s right to copy digital forms of music, movies, and books.

Lofgren’s legislation would let consumers make legal backup copies to use in cars, PCs or mobile devices. The bill would also prohibit shrink-wrap licenses and allow copies of digital works to be sold or given away, just like they can with traditional hard media.

The bill would also let consumers bypass technical measures that impede their rights and give a little flexibility for content owners to “develop new and innovative ways to protect their content and enable lawful uses.”

“Consumers need a voice in this debate. Right now, it is the entertainment industry versus the technology industry, and the consumers are watching from the sidelines,” Lofgren said in a statement. “Consumers have rights and expectations that cannot be ignored by industry goliaths.”

Boucher’s and Doolittle’s press conference was attended by a wide range of electronics manufacturers and consumer groups. Representatives from Sun Microsystems, Philips Consumer Electronics, Intel, Verizon, and a number of consumer and academic organizations all enthusiastically endorsed the proposed measures.

“This is a great day. For 20 years, we (consumer groups) have been on the defensive. Today, we go on the offensive,” said Gary Shapiro, chairman of the Home Recording Rights Coalition and president of the Consumer Electronics Manufacturers Association (CEMA). “If it applies to a VCR, then it should apply to a computer.”

Lofgren’s legislation has been endorsed by many of the same groups, including San Francisco-based online non-profit, civil liberties organization Electronic Frontier Foundation (EFF), the Computer & Communications Industry Association (CCIA), Association of Research Libraries, D.C.-based watchdog group Public Knowledge and Professor Larry Lessig, Stanford Law Professor and Stanford Center for Internet and Society founder.

“Within the boundaries of the constitution, it is Congress’s job, not the courts, to strike an appropriate balance for copyright in the face of changing technologies. This bill is an extraordinarily valuable step towards finding that balance, and restoring Congress to its proper role,” Lessig said.

Conspicuously absent were representatives from the radio, television, film and publishing industries, who are expected to mount an expensive and spirited defense against the legislation.

(Michael Singer of contributed to this reports)

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