Congress asked to unpick copy lock laws

A proposal to defang a controversial copyright law becomes public, after more than a year of waiting and months of closed-door negotiations with potential supporters.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
6 min read
A proposal to defang a controversial copyright law became public on Thursday, after more than a year of anticipation and months of closed-door negotiations with potential supporters.

Formally titled the Digital Media Consumers' Rights Act, the new bill represents the boldest counterattack yet on recent expansions of copyright law that have been driven by entertainment industry firms worried about Internet piracy.

The bill, introduced by Reps. Rick Boucher, D-Va., and John Doolittle, R-Calif., would repeal key sections of the 1998 Digital Millennium Copyright Act (DMCA). It would also require anyone selling copy-protected CDs to include a "prominent and plainly legible" notice that the discs include anti-piracy technology that could render them unreadable on some players.

"There is a tidal wave of support growing across the country for rebalancing copyright laws to dignify the rights of users," Boucher said in an interview Thursday. "I see that every day. The support is growing. We have fashioned this squarely to address the concerns that users are addressing and the technology industry is raising."

Boucher, the most outspoken opponent of the DMCA on Capitol Hill, has spent more than a year rallying support for this measure. After Dmitry Sklyarov, a Russian programmer visiting the United States, was arrested in Aug. 2001 on charges of violating the DMCA, Boucher called the prosecution "a broad overreach." In January, Boucher wrote an opinion article for CNET News.com in which he said: "We need to rewrite the law for the benefit of society as a whole before all access to information is irreversibly controlled."

In May, Boucher said that he was waiting for a critical mass of support to build and predicted his bill would be introduced "in the next month."

That never happened. But the delay allowed Boucher and Doolittle to convince an impressive number of companies to show up at a press conference on Thursday to endorse the bill. Among them: Intel, Verizon Communications, Philips, Sun Microsystems and Gateway.

Boucher and Doolittle also rallied nonprofit groups such as the American Library Association, the Association of American Universities, Consumers Union and the Home Recording Rights Coalition, which have lent their support.

"I could have introduced this bill a long time ago," Boucher said. "I had this draft in basically the form we introduced it today, two years ago. I've been working with a broad number of technology companies and public interest organizations to build a consensus. That takes time."

The fiercest opposition to the bill is likely to come from the ranks of traditional copyright enthusiasts: the Recording Industry Association of America, the Motion Picture Association of America, and the Association of American Publishers.

What it does
Currently the DMCA says that nobody may sell or distribute any product that "is primarily designed or produced for the purpose of circumventing a technological measure." Some limited exceptions apply to librarians, police, people conducting reverse engineering, and encryption researchers.

But when Linux programmers wrote the DeCSS utility to play DVDs on their computers, eight movie studios sued and a federal judge said the program violated the DMCA. Ed Felten, a Princeton University computer scientist, and his co-authors were also threatened with legal action by the music industry if they published a paper describing flaws in a digital watermark system.

"I think there's no doubt that there are appropriate fair uses which the DeCSS code would be facilitating," Boucher said. "For example, if someone simply wanted to get by the string of commercials at the start of a DVD so you could watch it without being subjected to all the advertising, DeCSS would allow that. It seems reasonable to me to allow the use of the code for that purpose."

The Boucher-Doolittle bill would make three changes to the DMCA, all designed to permit people to bypass copy-protection schemes for legitimate purposes:

• An exemption would be created saying anyone who "is acting solely in furtherance of scientific research into technological protection measures" would be able to distribute his or her code. That would permit Felten and other researchers--such as a programmer being represented by the American Civil Liberties Union (ACLU) in a current lawsuit--to publish their work without the threat of lawsuits.

• Bypassing technological protections would be permissible if done for legitimate "fair-use" purposes. The bill says it would not be a violation of federal law to "circumvent a technological measure"--as long as it does not lead to "an infringement of the copyright in the work."

• Creating a utility like DeCSS.exe might become legal. The bill says it would be legal to "manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work."

Jessica Litman, a professor at Wayne State University who specializes in copyright law, says the bill echoes a landmark 1984 Supreme Court case, Sony v. University City Studios, that permitted the sale of VCRs. "It seems to restore the Sony test that if you're making legitimate technology that also has a circumvention application, it's only illegitimate to distribute it if the legitimate application is not significant," Litman said.

Litman, who is a critic of the DMCA, says its anti-circumvention sections have not actually been used to thwart online piracy. "So far it's been used chiefly in cases where no copyright infringement has been alleged or proved," she said. "So far it doesn't seem to have been a very important bulwark against infringing behavior in the first place."

Copy-protected CDs
If the Boucher-Doolittle bill were to take effect, anyone selling copy-protected CDs would be required to include a "prominent and plainly legible" notice that it follows a modified format that may not play properly on all devices and may not be reproduced. Such CDs would also be required to sport detailed descriptions of return policies, minimum software required to play on a PC, and any restrictions on ripping songs to MP3 files, for instance.

The bill amends an existing law titled the Federal Trade Commission Act and grants the Federal Trade Commission the power to regulate labels on audio CDs. Under existing law, the FTC already may regulate false advertising, "Made in America" labels and all other "unfair methods of competition."

The FTC would develop regulations "to require the proper labeling" of CDs, and proscribing the removal or mutilation of any label. The restrictions would not apply to video DVDs, but they would cover DVD audio discs and the new Super Audio Compact Disc format.

James Gattuso, a lawyer at the conservative Heritage Foundation, says he has mixed feelings about the Boucher-Doolittle proposal. "It's neither 100 percent good nor 100 percent bad," Gattuso said. "The core of it, putting in a fair-use exemption for the DMCA, seems to make a lot of sense. But then it also contains a number of provisions putting new regulations on the marketplace."

"What it does is require a lot more disclosure, which sounds good," Gattuso said. "But in reality it means a lot more unread and useless warnings and disclosures that consumers will have to wade through. There's a cost to that. It could raise prices. It could take away from more important information that consumers really do want."

In September, a music industry group called the International Federation of the Phonographic Industry proposed a logo identifying copy-protected CDs. But, as previously reported by CNET News.com, record labels have already begun to shy away from the idea.

Next steps
It is a near certainty that the Boucher-Doolittle bill will not be enacted this year. Congress is about to recess before the fall elections, and the bill will receive a frosty reception by some key legislators if it is reintroduced in the new congressional session that begins in Jan. 2003.

Boucher's strategy is simple: to bypass the copyright enthusiasts who serve on the House Judiciary committee. After Sklyarov was arrested last year, Rep. Howard Coble, R-N.C., who is chairman of the House Judiciary subcommittee on intellectual property, said, "The law is performing the way we hoped."

On Thursday, the Boucher-Doolittle bill was referred to the House Commerce committee, which could be more sympathetic. "The committee on commerce is far more friendly and receptive in arguments on behalf of user rights than is the committee on the judiciary," said Boucher, who is a member of both panels. "The committee on the judiciary is more a venue for copyright owners to advance their arguments."

On Wednesday, Rep. Zoe Lofgren, D-Calif., introduced a similar bill that also would amend the DMCA to permit fair use and allow consumers to copy digital files "for archival purposes."