Philip S. Corwin, partner at the Washington, DC law firm of Butera & Andrews, which specializes in federal government relations and litigation, has written up an amazingly comprehensive and readable assessment of digital Washington. He participated yesterday in the "Digital Copyright Debate" panel at the Digital Music Forum. Not incidentally, he is also the counsel for Kazaa.
- Outlook for Copyright and Digital Media Legislation in the 108th Congress
Overview and Main Points
The 108th Congress will be confronted by the same copyright controversies and
related legislative initiatives that occupied attention and debate in the 107th Congress. Continued gridlock is the most likely short-term, first session scenario as competing interest groups intensify their lobbying, Congressional Committees engage in jurisdictional "turf" disputes, and various lawsuits wind their ways through the courts. Significant legislation becomes more plausible in the second (2004) session, and the required reauthorization of the Satellite Home Viewer Act (1) by the end of that year may provide a vehicle suitable to be "Christmas treed" with a variety of copyright amendments. Whereas Hollywood interests were on the offensive in the 107th Congress, they are more likely to be playing defense in the 108th. Part of this shift will be due to Republican control of both the White House and both branches of Congress, and Hollywood's close identification with the Democratic Party (2). However, the main cause will be the growing alliance between technology, telecommunications and consumer electronics firms with cyber-liberties, consumer, and privacy public interest groups, motivated by a shared reaction to Hollywood's aggressive legislative and litigation assault on digital technologies charged with abetting "piracy".
Major points of this memo include:
* Congressional leadership changes will alter the environment for consideration of digital copyright legislation.
* Proposals to delineate acceptable "fair use" for digital media will continue to be countered by a push for anti-copying technology mandates and legalization of broad "self-help" measures against P2P networks.
* The outcomes of ongoing lawsuits may spur Congressional reaction.
In the end, significant copyright legislation will emerge from the 108th Congress only if sufficiently powerful consensus develops for a response to the unforeseen technological changes that have occurred, and legal questions that have arisen, since the last major legislative round in 1998.
Legislative Initiatives
Key Committee Leadership
Significant changes in the leadership of Congressional Committees dealing with copyright and related technology legislation have occurred with the start of the 108th Congress.
On the House side, James Sensenbrenner remains Chairman of the Judiciary Committee but the Chairman slot at the Subcommittee on Courts, the Internet and Intellectual Property shifts from Howard Coble (R-NC) to Lamar Smith (R-TX). Rep. Smith was a cosponsor of Rep, Howard Berman's (D-CA) P2P bill (discussed below); Rep. Berman retains the ranking minority member slot on the Subcommittee. While the Subcommittee's full agenda has not yet been announced, Rep. Smith recently said, "I'm very mindful of artists and creators and musicians and their interests. The issue of piracy is so important to me that one of the first hearings, if not the first, will be on piracy." (3)
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