Time For the Public to Get Involved

Center for Democracy and Technology Executive Director Jerry Berman writes this week in the Legal Times on the need for more consumer input into all of the legal and governmental maneuvering going on over digital copyright protection:

In the first week of its new term, the Supreme Court became the latest flash point in one of the most important and heated debates of the Information Age: the protection of copyright in a digital world. At the heart of arguments before the Court in Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act, was how long we should extend the term of past copyrighted works. Although the law in question extends copyrights for future works as well, the heart of the case looked backward, to the copyright protection for works that have already been created. But the next set of debates about digital copyright will look more to the future than to the past. This is partly because copyright holders can increasingly couple legal protections with new digital locks that may protect creative works even longer than the Copyright Act does – maybe even forever. At the same time, other new technologies – particularly computers and the Internet – increasingly threaten the value of copyrighted works, regardless of legal protection.

He says it is Congress and not the courts where the debate should be taking place:

The debate now under way in the halls of Congress will define how Americans watch TV, listen to music, and use their computers for decades to come. At stake is nothing less than billions of dollars, the future of intellectual property, perhaps even the future of information itself.

….Consider some of the initiatives now before Congress:

*Copyright security mandates. Last year’s bill from Sen. Ernest Hollings (D-S.C.) would require that most digital devices include a government-approved copyright security system, unless industry is able to design one of its own. Legitimate questions about the bill’s implications and scope have been raised. What standard would be chosen, and would it protect reasonable consumer expectations about uses of content? Would a government technology mandate harm innovation in new technologies, particularly online?

*Digital TV broadcast flag. In what is probably the fastest-moving copyright initiative, a draft bill from Rep. Billy Tauzin (R-La.) and a rule making under way at the FCC this fall would require the next generation of digital television products to build in FCC-approved copy protections. But will reasonable consumer expectations about copying broadcasts and watching them later or in a different place be supported? Will existing products such as VCRs work with the new televisions?

*Protecting “fair use.” A set of bills from Reps. Rick Boucher (D-Va.), Zoe Lofgren (D-Calif.), and Christopher Cox (R-Calif.) would seek to allow some kinds of circumvention or legal copying, or affirmatively protect fair use. But content owners have raised legitimate questions about the scope and effect of these measures, and concerns about whether they would eviscerate their copyright protection technologies must be addressed.

*Peer-to-peer file sharing. The bill from Rep. Howard Berman (D-Calif.) is designed to permit copyright holders to take steps against those who share their material. But if a copyright holder attacks a home computer in an effort to stop suspected file sharing, will the home user even know what is happening
and have a right to respond if there is some mistake?

*Anti-counterfeiting measures. A relatively noncontroversial bill to penalize trafficking in illicit authentication devices, like the hologram seals on software or CDs, has been expanded to include nonphysical protections like digital watermarks. But credible critiques suggest the bill could make federal felons out
of millions who might share a watermarked digital file, or of the Internet service providers and other providers whose networks are used for such sharing.

The time has come for the public to learn and understand what all of this means and what the potential ramifications are BEFORE WE ARE STUCK WITH THEM.