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Digital Media Consumers’ Rights Act Of 2002

Rep. Rick Boucher

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Mr. Speaker, I am pleased to join with my colleague from California, Mr. Doolittle, in introducing the Digital Media Consumers' Rights Act of 2002 (DMCRA).

The Digital Millennium Copyright Act of 1998 (DMCA) tilted the balance in our copyright laws too heavily in favor of the interests of copyright owners and undermined the longstanding fair use rights of information consumers, including research scientists, library patrons, and students at all education levels. With the DMCRA, we intend to restore the historical balance in our copyright law that has served our nation well in past years.

In order to reduce growing consumer confusion and to reduce a burden on retailers and equipment manufacturers caused by the introduction of so-called ``copy protected CDs,'' we have also included in the bill comprehensive statutory provisions to ensure that consumers will receive adequate notice before they purchase these non-standard compact discs that they cannot record from them and that they might not work as expected in computers and other popular consumer electronics products. Consumers shouldn't have to learn after they get home that the product they just purchased can't be recorded onto the hard drive of a personal computer or won't play in a standard DVD player or in some automotive CD players.

Before describing the provisions of the bill in detail, I think it useful to provide a general overview of what has occurred over the past five years and why we need to recalibrate the DMCA in light of that experience. As my colleagues may recall, in 1997 the Administration proposed legislation to implement two international copyright treaties intended to protect digital media in the 21st century. At the time, motion picture studios, record companies, book publishers, and other owners of copyrighted works indicated that the treaty implementing legislation was necessary to stop ``pirates'' from ``circumventing'' technical protection measures used to protect copyrighted works. As the bill was being formulated, it was clear that the proclaimed effort to crack down on piracy would have potentially harmful consequences for information consumers. Nonetheless, copyright owners asserted that the proposed legislation was not intended to limit fair use rights.

At the time, libraries, universities, consumer electronics manufacturers, personal computer manufacturers, Internet portals, and others warned that enactment of overly broad legislation would stifle new technology, would threaten access to information, and would move our nation inexorably towards a ``pay per use'' society. Prior to 1998, the American public had enjoyed the ability to make a wide range of personal non-commercial uses of copyrighted works without obtaining the prior consent of copyright owners. These traditional ``fair use'' rights have long been at the foundation of the receipt and use of information by the American public, and have been critical to the advancement of important educational, scientific, and social goals.

Congress was warned that overly broad legislation could have potentially harmful effects. Manufacturers of consumer electronic and other multiple purpose devices, for example, pointed out that a VCR or PC, among other popular devices, could be deemed to be an illegal ``circumvention'' device. In response to these concerns, the Administration limited the prohibition to devices that are primarily designed or produced for the purpose of circumventing; have only a limited commercially significant purpose or use other than to circumvent; or are marketed for use in circumventing. Even with this modification, however, the provision still contained a fundamental defect: it prohibited circumvention of access controls for lawful purposes, and it prohibited the manufacture and distribution of technologies that enabled circumvention for lawful purposes. In apparent response to expressions of concern, the Administration proposed a savings'' clause (ultimately enacted as section 1201(c)(1)), which states that section 1201 does not affect rights, remedies, limitations, or defenses to copyright infringement, including fair use. However, as at least some of us understood at the time, and two courts have since confirmed, the fair use defense to copyright infringement actions is not a defense to the independent prohibition on circumvention contained in Chapter 12 of the DMCA. Since Chapter 12 actions are not grounded in copyright law, the so-called ``savings clause'' preserving fair use defenses to copyright infringement actions is meaningless in the context of actions under the DMCA.

Other problems were seen with the Administration's original draft. As Congress became aware that the Administration's proposal prohibited many other legitimate activities, our colleagues agreed to graft numerous exceptions onto section 1201. The House Committee on Commerce, in particular, sought to more carefully balance the interests of copyright owners and information consumers by including provisions dealing with encryption research, reverse engineering, and security systems testing. We can now see in retrospect, however, that these provisions did not go far enough.

Congress made other changes in an effort to right the balance. Principally at the urging of consumer electronics manufacturers, Congress adopted the so-called ``no mandate'' provision to give equipment manufacturers the freedom to design new products without fear of litigation. Section 1201(c)(3) provides that, with one exception (set forth in section 1201 (k)), manufacturers of consumer electronics, telecommunications, and computing products are not required to design their products to respond to any particular technological protection measure. (The only requirement imposed on device manufacturers is to build certain analog VCRs to conform to the copy control technology already in wide use in the market.) The ``no mandate'' provision was essential to addressing the legitimate concerns of the consumer electronics, telecommunications, and computer industries, which feared that section 1201 otherwise might require VCRs, PCs, and other popular consumer products to respond to various embedded or associated codes, or other unilateral impositions by content owners without the assurance of corresponding protections for equipment consumers. Moreover, through legislative history, Congress also made clear that equipment manufacturers were free to make adjustments to products to remedy ``playability'' problems created by unilaterally developed technical measures.

In the end, however, these changes were not enough to achieve the appropriate level of balance. In the end, the DMCA dramatically tilted the balance in the Copyright Act towards content protection and away from information availability.

Given the breadth of the law and its application so far, the fair use rights of the public at large clearly are at risk. From the college student who photocopies a page from a library book for use in writing a report, to the newspaper reporter excerpting materials from a document 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 to obtain prior approval of the copyright owner. In fact, fair use rights to obtain and use a wide array of information are essential to the exercise of First Amendment rights. In my view, the very vibrancy of our democracy is dependent on the information availability and use facilitated by the fair use doctrine.

Yet, efforts to exercise those rights increasingly are being threatened by the application of section 1201 of the DMCA. Because the law does not limit its application to circumvention for the purpose of infringing a copyright, all kinds of traditionally accepted activities may be at risk.

Consider the implications. A time may soon come when what is now available for free on library shelves will only be available on a ``pay per use'' basis. It would be a simple matter for a copyright owner to technically enshroud material delivered in digital format and then to impose a requirement that a small fee be paid each time the password is used so that a digital book may be accessed by a library patron. Even the student who wants the most basic access to only a portion of an electronic book to write a term paper would have to pay. The DMCA places the force of law behind these technical barriers by making it a crime to circumvent them even to exercise fair use rights. The day is already here in which copyright owners use ``click on,'' ``click through,'' and ``shrink wrap'' licenses to limit what purchasers of a copyrighted work may do with it. Some go so far as to make it a violation of the license to even criticize the contents of a work, let alone to make a copy of a paragraph or two.

To address these and other concerns that have been voiced since enactment of the DMCA, the bill we have introduced would amend sections 1201(a)(2) and (b)(1) to permit otherwise prohibited conduct when engaged solely in furtherance of scientific research into technological protection measures. Current law permits circumvention of technological protection measures for the purpose of encryption research. The bill expands the exception to include scientific research into technological protection measures, some of which are not encryption. This change is intended to address a real concern identified by the scientific community. It does not authorize hackers and others to post trade secrets on the Internet under the guise of scientific research, or to cloak otherwise unlawful conduct as scientific research.

Since September 11, we have all become more aware of the importance of improving the security of computer networks against hacking. Our computer scientists must be allowed to pursue legitimate research into technological protection measures to determine their strengths and shortcomings without fear of civil litigation or criminal prosecution under the DMCA. The public needs to know the genuine capabilities of the technological protection measures. The proposed amendment provides computer scientists with a bright line rule they can easily follow, and would encourage them to engage in research for the public's benefit.

The bill we have introduced does what the proponents of section 1201(c)(1) of the DMCA said it did, namely, to preserve the fair use rights of consumers under section 107 of the Copyright Act and under section 1201. (Just last year, the presidents of the Business Software Alliance and the Interactive Digital Software Associations citing the ``savings clause'' stated in a letter to the editor of the Washington Post that ``[t]he DMCA did nothing to upset existing fair use rules that still permit a variety of academic inquiries and other activities that might otherwise be infringing.'') The bill amends the ``savings clause'' to make clear that it is not a violation of section 1201 to circumvent a technological measure in connection with gaining access to or using a work if the circumvention does not result in an infringement of the copyright in the work. In short, if a consumer may make a fair use of a copyrighted work, he may gain access to it and then make use of it without liability under section 1201. At the same time, if his or her conduct does not constitute fair use under section 107, liability may attach under section 1201.

In this connection, I think it is important to stress that, when the DMCA was being debated equipment manufacturers unsuccessfully sought to clarify the savings clause in section 1201. Since enactment of the DMCA, these same manufacturers have had to build business plans that incorporate copy protection technologies into their digital product offerings in order to ensure that content will be made available to consumers in digital forrnats. At the same time, these manufacturers have worked to ensure that those technologies are used in ways that are consistent with consumers' customary recording and viewing practices. I recognize that because the determination of whether or not a particular use is considered a ``fair use'' depends on a highly fact specific inquiry, it is not an easy concept to translate into a technological implementation. Our bill is not intended to encourage consumers to disable copy protection systems in order to gain increased access to protected works where the technology has been implemented in a manner that seeks to accommodate the consumer's fair use expectations. Instead, this proposal is in pursuance of a larger objective of ensuring that existing copy protection measures are implemented in ways that respect consumers' customary practices and ensuring that, as future technologies are developed, they incorporate means by which fair use of content can be made. As Congress demonstrated in developing section 1201(k) of the DMCA, there are ways to balance legislatively the interests of content owners and consumers when technological solutions that respect fair use practices can be agreed upon by all parties.

In addition to restrictions on their fair use rights, consumers face a new problem as record companies increasingly introduce into the market non-standard ``copy-protected compact discs.'' As widely reported in the press, consumers have found that these ordinary-looking CDs do not play in some standard consumer electronics and computer products and that they cannot be copied on computer hard drives or in CD recorders. Without question, record companies should have the freedom to innovate, but they also have the responsibility to provide adequate notice to consumers about the ``recordability'' and ``playability'' of these discs. They have not done so. For that reason, I believe it is appropriate for Congress to now step in. Our bill will ensure that non-standard discs are properly labeled to give consumers adequate notice of all disfunctionalities.

In this connection, I think it is important to note that the conferees to the DMCA expected all affected industries to work together in developing measures to protect copyrighted works. As the conferees pointed out, ``[one of the benefits of such consultation is to allow testing of proposed technologies to determine whether there are adverse effects on the ordinary performance of playback and display equipment in the marketplace, and to take steps to eliminate or substantially mitigate those effects before technologies are introduced.'' That process does not appear to have been employed with regard to the new unilaterally developed methods being used to protect compact discs.

In closing, I think it important to stress that, for over 150 years, the fair use doctrine has helped stimulate broad advances in scientific inquiry and in education, and has advanced broad societal goals in many other ways. We need to return to first principles. We need to achieve the balance that should be at the heart of our efforts to promote the interests of copyright owners while respecting the rights of information consumers. The DMCRA will restore that balance.