Senator wants limits on copy protection

The bill, authored by Sen. Sam Brownback, would regulate digital rights management systems, granting consumers the right to resell copy-protected products and requiring digital media manufacturers to prominently disclose to consumers the presence of anticopying technology in their products.

The Kansas Republican's bill requires that a copyright holder obtain a judge's approval before receiving the name of an alleged peer-to-peer pirate. That would amend the 1998 Digital Millennium Copyright Act, which a federal court concluded enables a copyright holder to force the disclosure of a suspected pirate's identity without a judge's review. This law is at issue in the recording industry's recent pursuit of the identity of a Verizon Communications subscriber.

The main thrust of the Brownback bill, however, is to slap regulations on digital rights management (DRM) technology, which has become increasingly popular tool in reducing the widespread copyright infringement on the Internet. Last month, Microsoft CEO Steve Ballmer stressed his company's support for DRM technology. Apple Computer also uses DRM to limit how customers can reuse music that's downloaded from the iTunes Music Store. Some consumer groups argue that DRM infringes on the right to make "fair use" of copyrighted works and to back up legally purchased digital files.

"The legislation seeks to create new tools to combat unfettered Internet piracy of digital content while maintaining the important ability of our nation's hardware manufacturers to innovate and build products consumers need and want to use," Brownback said in a statement. "The legislation recognizes that the same DRM technologies used to combat piracy are also sought after by the content industry to create new DRM-enabled business models. My legislation gives them a free hand in seeking out DRM technologies that permit them to explore these new opportunities, but ensures their success or failure will rest in the marketplace, where it belongs--not in Congress."

If the Brownback proposal were enacted, the Federal Trade Commission would have the power to ban DRM systems that limit a consumer's right to resell any "digital media product," a category that includes everything from computer software to e-books to copy-protected CDs and movies. It also says that companies selling such products must offer "clear and conspicuous notice or a label on the product" indicating the presence of anticopying techology that follows FTC regulations, starting one year after the law's enactment, unless the FTC determines that industry groups have created reasonable "voluntary" guidelines of their own.

At a privacy and politics summit here on Tuesday, an industry representative said the bill--called the Consumers, Schools and Libraries Digital Rights Management Awareness Act--will likely be introduced at a press conference in the middle of next week. A representative for Brownback said Wednesday that he could not confirm when the event would be held, except to say it would take place "shortly." Brownback, a conservative with a 100 percent vote from the American Conservative Union in 2000, is a member of the Senate Communications Subcommittee.

"We're going to support it," Mike Godwin, an attorney with advocacy group Public Knowledge, said of Brownback's plan. "I think that Sen. Brownback and his staff have clearly made an effort to develop a bill that addresses some of the major excesses that we're seeing in the policy arena at the intersection of copyright policy and technology policy."

However, a representative at the Recording Industry Association of America said the legislation is "weighted down with a variety of bad public policy judgments hostile to all property owners. The DMCA was a carefully crafted compromise and balance struck by Congress. That's why efforts to cherry-pick particular provisions are likely to fail."

"With respect to the information subpoena provision," the RIAA representative continued, "the intent of Congress was clear and appropriate, and the district court's decisive rulings show that Congress got it right."

A draft of the Brownback bill provided to CNET News.com by a congressional aide also:

• Prohibits the Federal Communications Commission from forcing companies that make or sell PCs or digital video products to include specific copy-protection technology in them.

• Requires the FTC to create an advisory committee that will describe "the ways in which access control technology and redistribution control technology may affect consumer, educational institution and library use of digital media products based on their legal and customary uses of such products."

• Requires the FTC to prepare a report two years after the bill is enacted into law. The report would include information about how prevalent DRM technologies are, whether they allow "consumers, educational institutions and libraries to engage in all lawful uses of the product," and how often copyright holders have tried to glean subscriber information from Internet service providers.

Adam Thierer, an analyst at the free-market group Cato Institute, applauded parts of Brownback's bill--such as limiting the FCC's power--but said it was a mistake to involve the federal government in regulating DRM technology.

"It's a decidedly mixed bag," Thierer said. "There are some things worth praising, such as opposing technology mandates from the FCC, but the baggage in this bill in terms of the FTC regulations are somewhat troubling...There are requirements that cut in the opposite direction. That's really unfortunate."

An unrelated bill already introduced in Congress by Sen. Ron Wyden, D-Ore., takes a similar approach in part, saying that software, music and movies that include copy-protection technology must be prominently labeled as having such technology, with consumer warnings.