Boucher on Digital Media Consumers’ Rights Act

From press conference yesterday:

Today, my California colleague John Doolittle and I will introduce in the House of Representatives the Digital Media Consumers’ Rights Act which will reaffirm and reinforce the Fair Use doctrine in this digital era.
Before describing the provisions of our bill and the conditions which call for its enactment, a word about why Fair Use is important to our society and why it is worth fighting for.

The Fair Use doctrine was fashioned by the federal courts as a means of furthering the vital free expression values that are given constitutional recognition in the First Amendment. Fair Use is a pressure relief valve on what would otherwise be total monopoly control by the owner of a copyright over the use of the copyrighted material. It permits limited personal non-commercial use of lawfully acquired copyrighted material without the necessity of having to obtain the prior consent of the owner of the copyright.

We all employ the Fair Use doctrine in everyday life. From the college student who photocopies a page from a library book for use in writing a report to the newspaper reporter who excerpts materials for a story, to the typical television viewer who records a broadcast program for viewing at a later time, we all depend on the ability to make limited copies of copyrighted material without having to pay a fee or obtain approval from the copyright owner.

In fact, Fair Use of a wide array of information is essential to a range of expressive activities. In our daily conversation, we frequently use phrases from copyrighted books, articles, or songs without even realizing we are doing so. Without the Fair Use doctrine, even whistling a popular tune in the park (literally, a “public performance”) would be copyright infringement. In this way, Fair Use helps to make our First Amendment rights real: In its absence, we could not engage in critical political or artistic commentary without fear of copyright liability.

The courts have wisely realized that freedom of speech and freedom of the press require the freedom to use copyrighted material on an incidental basis. Addressing the potential conflict between the First Amendment and copyright guarantees, courts have stressed that the presence of the Fair Use doctrine helps to avoid a constitutional conflict. In this way, the Fair Use doctrine has become essential to the public discourse and debate which underpins our way of life and gives vitality to our democracy.

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 as reflected in the Fair Use doctrine. The Digital Millennium Copyright Act of 1998 (DMCA) dramatically tilted the copyright balance toward complete copyright protection. The 1998 law enables the copyright owner to enshroud his material with a technological protection measure and then makes it a civil wrong and a potential federal felony for anyone to circumvent the technical measure for any purpose. Even people who have purchased and paid for copyrighted material would be liable if they bypass the technical protection for the purpose of making Fair Use of the work they have lawfully acquired.

The same law also prohibits manufacturing, distributing, or otherwise making available the technical means of enabling people who have lawfully acquired copyrighted material to bypass technical protection measures in order to make Fair Use – or other non-infringing uses – of those works.

Under the 1998 law, copyright owners now have the power virtually to extinguish the Fair Use doctrine with respect to material delivered in digital format. Even a simple technological protection measure, such as a password, can be placed in front of copyrighted material and a small payment then exacted for every use of the material. Inevitably, more and more copyright owners will use this broad legal power. In the future, library patrons may well find that instead of material being available on the library shelves for free, new material delivered to the library will only be available on a “pay per use” basis.

There are other obvious examples of how the 1998 law can undermine Fair Use:

*An individual buys the text of an electronic book guarded with a protection measure. He would like to apply “text to audio” software to enable him to listen to the text of the electronic book while he is driving his car. But if he circumvents the technological protection measure to apply the software he is liable under the DMCA even though his sole intent is to make personal Fair Use of material he has lawfully acquired.

* A student is preparing a multi-media project on the treatment of Native Americans in American film. The student needs to circumvent the protection measure guarding access to DVDs containing these films in order to excerpt small clips from the films for use in the multi-media project. He cannot do that under current law.

* A movie fan purchases a DVD and wants to play it on his home computer which has a Linux operating system. He needs to bypass the technical protection on the DVD for it to play on his Linux-based system. If he does so, even for this innocent purpose, he is liable under the DMCA.

*Another movie fan needs to bypass the technical protection just to avoid having to see all of the commercials at the start of the movie on a DVD. Again, the DMCA prohibits him from doing so.

The Digital Millennium Copyright Act of 1998 places the force of law behind the technical barriers put in place by copyright owners. We have no quarrel with a law which prohibits circumvention of a technological protection measure for the purpose of infringing the copyright. We have a huge quarrel with the current law which punishes circumvention to make Fair Use – or any non-infringing use – of copyrighted material.

Accordingly, the bill we are introducing today will amend Section 1201 of the DMCA to provide that the only time the act of circumvention is prohibited when the purpose of the circumvention is to infringe the copyright in the work. Circumvention for Fair Use purposes will no longer be penalized when our bill is enacted into law.

Other provisions of the 1998 law makes it a crime to manufacture, distribute or otherwise traffic in circumvention technologies. Those who manufacture technologies which are capable of both infringing and non-infringing uses may find themselves convicted of a crime if a court years after the fact determines that a manufacturer “primarily designed” a device to infringe copyright even if the manufacturer actually intends that the device be used for a non-infringing purpose. The chilling effect on developing new technologies and bringing them to market is obvious. Moreover, this provision greatly hinders the ability of people to obtain the means to make Fair Use of material they have lawfully acquired by denying them the tools they would need to do so.

Some examples:

* A tenured professor of computer science enters a contest to defeat watermarking technology that will be used to protect against the redistribution of audio content. Instead of claiming the offered prize money, he instead decides to share his work with other research scientists. The case I have described is of course Princeton University Professor Felten’s successful effort to defeat four proposed watermarking technologies, which led to threatened litigation by the very organization that sponsored the contest.

* A person who purchases the text of an electronic book may desire to back up the text so that if his hard drive crashes he will not have to repurchase the text. In order to make a back-up copy, the technical protection measure guarding access to the text of the electronic book would have to be circumvented. If a company manufactures software that enables circumvention of the protection measure for that purpose, it is subject to criminal prosecution under the 1998 law. The facts I have described are those of the Elcomsoft case, in which a Russian software manufacturing company is being prosecuted before a federal court in the United States.

*Or consider the circumstance of libraries which collect material which remains in their archives on a permanent basis. If a library obtains a journal in digital format, and ten years later the electronic reader which enables the journal to be accessed is no longer manufactured and no longer commercially available, the library would need a tool to circumvent the technical protection measure and gain access to the journal. Under the 1998 law, the manufacture or distribution of such a tool would be subject to prosecution, even though the conduct it enables would be lawful.

Even had the manufacturers in these examples anticipated that their products would primarily be used for Fair Use applications that involve no copyright infringement, they could not have escaped prosecution under the DMCA. The fact that a technology has other important and independent applications, unrelated to infringement or even circumvention, might not be enough to save a manufacturer from liability. Consequently, manufacturers will be extremely reluctant to produce useful products that have substantial beneficial uses but which can also be used for any sort of circumvention.

Our bill addresses this problem by reasserting the time honored test established by the United States Supreme Court in 1984 in the case of Sony Corporation v. Universal City Studios. This was the famous Betamax case which established the legality of the first video cassette recorder introduced into the commercial market. The Supreme Court found that the Betamax had a substantial non-infringing use, identified by the Court to be time shifting, which the Court declared to be Fair Use. The Court then held that since the Betamax had a substantial non-infringing use, i.e. time shifting, the manufacturer of the Betamax and anyone who distributed the Betamax would not be liable for contributory copyright infringement.

The Betamax case was a sound decision. It adopted a practical and workable test which gave the manufacturer confidence that if his device was capable of a substantial non- infringing use, he will not later be found to be liable for copyright infringement, even if his device is primarily used for an infringing purpose.

In the wake of the Betamax decision, a flood of useful consumer electronics and computing appliances entered the market to the broad benefit of consumers, equipment makers and, I would note, even the motion picture studios, who have made far more money in the secondary market of video cassette rentals and sales than in the primary market of motion picture theater viewings.

Our legislation applies this wise and useful test in a new setting – that of liability for making the means of circumvention. When our bill is enacted into law, a manufacturer, distributor, or someone who otherwise traffics in technology that enables

circumvention of a protection measure would only be liable under the 1998 law if the technology is not capable of substantial non-infringing use. Prohibitions would continue to apply with full force to the “black boxes” which are used for infringement only that were so widely and appropriately denounced in the Congressional deliberations leading up to enactment of the DMCA. However, our proposed change would give manufacturers the assurance they need to continue to introduce useful multi-purpose consumer electronics and computing appliances. This provision would also ensure that the American public has access to the technologies needed to continue to make broad Fair Use of copyrighted materials.

Our bill has two other provisions:

First, it expands the encryption research exemption from the anti-circumvention crime contained in the 1998 law to scientific research on technical protection measures generally. Some protection measures are not strictly speaking “encryption.” The consuming public and the manufacturers of technical protection measures need the assurance that the technologies are sound, durable, and effective. Only through research on the strength and reliability of these products can that assurance be provided, and the expansion of the “encryption research”exemption to “research on technological protection measures” is needed.

Secondly, the bill directs the Federal Trade Commission to undertake a rulemaking to assure adequate notice to the public of any lack of functionality which may attend the purchase of copy protected CDs.

Only a few copy protected CDs have received wide commercial distribution in the U.S. market; however, some record labels have indicated their intention to introduce more. The labeling on the two CDs introduced to date is clearly inadequate.

One has to be looking for the disclaimer on the CD case in order to find it, and once it is found, the disclaimer does not clearly state that copies may not be made from the CD and that the CD will not play in some CD players, in DVD players and in computer CD-ROM drives.

The consumers who have purchased copy protected CDs sometimes blame equipment manufacturers for the fact that the CD will not play in some of these devices. Other consumers have been frustrated that they cannot make personal use copies of tracks from the CD.

Our legislation does not bar the introduction of copy protected CDs. It does require that if they are introduced more broadly into the U.S. market, the record labels must conspicuously and clearly state that the CD may not be copied and that it may not be played in various identified devices. This notice must be obvious, and it must be easy to understand.

Taken together these provisions constitute a substantial step forward in the protection of digital consumer rights, and I look forward to working actively with my colleague Mr. Doolittle, the numerous public sector and private sector organizations represented here today who are endorsing our bill and other interested Members of Congress as we seek to enact these changes. Given the date upon which our bill is being introduced, it is apparent that we are not seeking enactment of the measure during the current session of Congress. Rather our purpose today is to put forth a set of principles to reaffirm and underpin the Fair Use doctrine and other traditional limitations on copyright, to advance the rights of the consumers of digital media and to create a legal environment in which equipment manufacturers will be encouraged to innovate and to continue the flow into American commerce of an expanding array of consumer electronics and computing technology.

Mr. Doolittle and I will welcome comments, recommendations and suggestions from anyone who has an interest in assuring the protection of the rights of individuals who purchase and lawfully use digital media. We believe that we have structured legislation which restores the historical balance in copyright law between the rights of copyright owners and the rights of the users of copyrighted material; however, there are clearly other ways to strike this balance, and we will welcome a constructive dialogue on how best to achieve the goals we have announced during the course of the next Congress. I would note, for example, that our colleague Zoe Lofgren is also introducing legislation this week which takes useful steps to ensure the rights of the users of copyrighted material. We welcome her effort and that of other interested members.

I want to thank my colleague Mr. Doolittle for his partnership in assembling the bill, and I want to thank the organizations that have worked with us in that effort and who are here today to urge the passage of this measure.

I am honored that our bill carries the endorsement of the Intel Corporation, the Philips Corporation, Verizon, Sun Microsystems, Gateway, the Consumer Electronics Association, the Home Recording Rights Coalition, the Computer and Communications Industry Association, the Association of American Universities, the American Library Association and other library organizations, the Digital Future Coalition, the Consumers Union, Public Knowledge, the National Writers Union, and the American Foundation for the Blind. I also thank Professor Peter Jaszi, one of the nation’s foremost authorities on copyright law and a professor at American University’s Washington College of Law, for his substantial contributions to our effort, and I welcome his presence here today. I want to thank the members of the press for their attention, and now I will call on my colleague John Doolittle from California with whom I have been pleased to work in drafting the Digital Media Consumers’ Rights Act for his comments.