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The Hill's property rights showdown

With the DMCA under attack from all quarters, Congressman Rick Boucher says it's time to rethink the controversial law.

WASHINGTON--The Digital Millennium Copyright Act is under siege.

For the first time since it was enacted in 1998, the DMCA has become the target of a large and growing number of critics seeking to defang the controversial law. The legislation says Americans aren't permitted to circumvent encryption guarding certain digital media products--even if the purpose is to make a backup copy of a computer program or DVD.

On Tuesday, a new group called the Personal Technology Freedom Coalition is planning a press conference to reiterate its members' support for a proposal to repeal the portion of the DMCA that has drawn the most condemnation. Its organizers already have met with representatives of about 20 congressional offices, and they say the coalition includes key tech companies like Sun Microsystems, Gateway and Philips Consumer Electronics North America.

Currently the DMCA says that no one may sell or distribute any product that is "primarily designed or produced for the purpose of circumventing a technological measure." Over the last four years, that wording has alarmed academics, security researchers, librarians and corporate executives who say that it stifles legitimate science and research.

In response, Rep. Rick Boucher, D-Va., introduced a bill called the Digital Media Consumers' Rights Act (HR 107). It would allow the circumvention of copy protection as long as no piracy is taking place. A House of Representatives committee convened a hearing on the reform proposal last month, and supporters are predicting a floor vote by the end of the year.

CNET News.com recently spoke with Boucher about the prospects for his legislation, the counterattack by big-media lobbyists, VoIP (voice over Internet Protocol) regulation and spam.

Q: You've long been a critic of the "anticircumvention" sections of the DMCA. You introduced HR 107 two years ago, but it's still in a subcommittee. Is there any reason to be optimistic about it?
A: I think that our legislation has a good chance of being approved, at least in the House of Representatives, this year. I think that the major push for passage probably will come during the course of the next Congress. There has been a tremendous change in public perception with respect to the appropriate level of protection for intellectual property over the course of the years since the Digital Millennium Copyright Act was passed in 1998.

That change can be reflected in the very broad coalition that today is in support of HR 107, the modest set of corrective amendments to the DMCA that I have introduced. That includes major components of the computing industry, including Sun Microsystems, Gateway, the Computer & Communications Industry Association and others.

It includes the major telephone companies, including Verizon, SBC, BellSouth, Qwest and the trade association that represents local telephone companies. It also includes (librarians and) the two largest consumer organizations in the nation: the Consumer Federation of America and the Consumers Union.

What changed in the last few years, by your reckoning? Was it the Dmitry Sklyarov prosecution or cases like Professor Ed Felten's?
The answer is yes to all of that. Professor Felten's example is particularly egregious, because here is an individual who responded to an invitation to test the strength of a digital rights management system and to determine if it had flaws. He decided to publish the results of his research, and no sooner had he made the statement (that) that was his intent, he was threatened with a lawsuit by the very people who invited him to perform the research in the first place.

Mr. Sklyarov was arrested simply because he brought (Adobe Systems e-book decryption software) into the country. The jury made a very wise decision and refused to convict in that case, but the example of a person being arrested because he brought to the country technology that had potential infringing applications is very chilling.

These may be strong arguments, but they are also abstruse ones. How do you hope to win over your colleagues when you have people on the other side, like Rep. Butch Otter, saying: "Theft is theft, and property is property"?
I think that most people (who) do have an understanding of the role of intellectual property and history do not agree with that rather simplistic statement. Intellectual property is inherently term-limited. It has always been seen as being less of a property right than ownership of a car or land, which is permitted until the owner decides to depart with it and which is rather absolute in its terms.

Our intellectual-property laws have always been intentionally porous, and the porous nature of those laws, accommodating, for example, the Fair Use Doctrine, has enabled the society to have a right to use intellectual property in certain circumstances without having to obtain the permission in advance of the owner of the copyright.

You mentioned that many technology groups were in favor of the bill. But there are also industry groups like the Business Software Alliance and the video game lobbyists who are dead set against it. Could you speak to this split within the technology community?
Many companies that primarily produce intellectual property oppose this measure. So does the Business Software Alliance, which is dominated by Microsoft. It is, some believe, sort of Microsoft's alternative voice in the nation's capital. The passage of the DMCA was the crown jewel of the legislative efforts of the content-creating community of the last two decades, because it was a dramatically blunt instrument. It criminalizes conduct that most people would believe should be innocent, such as circumventing technical protection in order to exercise a fair-use right.

You said that some of the arguments in support of the bill are abstruse. Let me say this: The librarians make a very compelling case. They say the day is going to come very soon when most material gets delivered to the library in digital format.

It is very easy to use the anticircumvention section of the DMCA--for the creator of that content to lock it behind a technical measure. It could be as simple as a password requirement, but then every time someone wants to access that material, a micropayment would have to be paid. So what is available on the library shelf for free today would only become available on a pay-for-use basis in the future. That is not abstruse; that is easy to understand.

Is that necessarily a bad thing? Let's say a library could not afford a journal subscription that costs $10,000. But with an electronic journal that's locked up and pay-for-use, the library might be able to spend 50 cents to let a patron look at it.
I think you can create an argument with regard to certain specialized kinds of materials for which perhaps some kind of licensing arrangement that involves payment for every use would be in the public interest. But the libraries are concerned that this application will not just be with respect to deeply specialized and very expensive materials--but with regard to everything.

The student who perhaps is from a less financially fortunate family who needs to come to the library to do research for a term paper cannot access any materials for that term paper without having to pay a dollar for every reference. By the time you have gone through 30 books, you would spend $50 in a library just accessing everyday run-of-the-mill materials that are available for free today.

I went to an event exactly two years ago that was a celebration on Capitol Hill. You had very prominent politicians there literally toasting the DMCA's anniversary with champagne.

That was an event put on by the companies that had won the victory, because they saw my bill coming. I was talking about it with you and others. This was an event to kind of thump the chest and show support, and they had members of the judiciary committees in both the House and the Senate who are their allies.

But they did not have members of the committee that is considering my bill--the Committee on Energy and Commerce. Its chairman strongly supports the bill and has announced his intention to mark this bill up and move it forward.

It's always easier to delay legislation than move it forward. You seem to have steadfast foes in the House Committee on Judiciary. How are you going to deal with attempts to block the bill?
Good question. The committee to which a bill is referred secondarily, (in this case, the House Judiciary Committee), may not through either inaction or negative action kill the bill. That committee can recommend amendments, and then the House Committee on Rules can make a decision about which text will be in order as the primary text for floor consideration and to what extent amendments recommended, perhaps by a committee of secondary jurisdiction, will be eligible for floor consideration.

The probable outcome here is that the bill will be reported from the Committee on Energy and Commerce. It would be secondarily referred for a limited period of time to the Committee on Judiciary.

The Committee on Judiciary, as you rightly suggest, will be hostile to the bill. It will offer amendments that would negate the purpose of the bill in all likelihood, and then those amendments will be considered by the Rules Committee. Then it would be up to the full membership of the House to simply make a decision about which direction is more appropriate.

Do you have any commitment from the House Republican leadership to schedule a floor vote?
No, because that is premature. We are not at that point in the process yet, and it would be really the job of the chairman of the committee that reports the bill to navigate the bill onto the House calendar, and so that will be Joe Barton's role. He is a co-sponsor of the bill. He is as enthusiastically in favor of making these changes, as I am.

You've been working on this bill for two or three years. Do you have any commitments from anyone in the Senate to pick it up there?
No, because that is also somewhat premature. I have had conversations with sympathetic senators. I am not at liberty to identify them at this point. Their basic message to me has been: "See what you can get done in the House. When we see forward motion in the House, we will consider a corollary bill in the Senate."

Has the influence of the entertainment lobby, especially the music and movie industry, waxed or waned over the last few years?
I do not think it has changed dramatically. In other words, I do not think the people who have considered themselves to be closely aligned that industry have a significantly different view now. What has changed is the perception of the Digital Millennium Copyright Act.

What else is on Congress' technology agenda?
There is one big one, which is going to be a reopening of the 1996 Telecommunications Act, and that will be driven by two basic issues.


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One of those is the need to solidify and find new funding sources for the Universal Service Fund that sustains affordable telephone service on a nationwide basis, and the other one is the arrival of VoIP as a truly disruptive technology that will dramatically change the business models of all of the existing telecommunications marketplace participants.

The rules of the road with respect to VoIP will have to be written then, and that is a big enough question, such that it really needs to be done in Congress, not in a nonelected administrative agency (i.e., the Federal Communications Commission). It is those two issues that will create the opportunity to reopen the 1996 Act.

Except for wiretapping, the FCC seems inclined to keep VoIP lightly regulated. Do you think that once Congress is done rewriting the law, VoIP will stay that way?
I think VoIP should essentially be unregulated. There will be plenty of competition, and competition is always better than regulation in terms of assuring a high-quality product and a reasonable price, and I think that will be the prevailing view.

There are some areas where some amount of government direction is necessary. You mentioned one of those--the need of law enforcement to have access for properly authorized wiretaps. We should make sure that if the FBI needs access, the cost of providing the access, including any equipment modifications that are necessary, would be borne by the government and not by the private-sector service provider.

Also, since VoIP will transplant largely traditional telephone service, (we must require) an appropriate contribution from VoIP providers to the Universal Service Fund.

The third issue relates to access charges. To the extent that VoIP calls originate with an Internet-based service but terminate on the circuit-switched network, access charges should continue to apply to the terminating of those calls.

Eventually, VoIP will migrate to an end-to-end Internet service so that the call will originate as an Internet call, it will travel as a package switch call across the network, and it will be terminated on a broadband connection that is also an Internet-based connection. Until that happens, the access charges should continue to apply to the extent that the circuit-switched network is used. I think that we may need legislation to completely clarify that point.

The Universal Service Fund structure makes most Americans pay more in phone taxes to subsidize rural and low-income phone lines. Will increasingly cheap cellular service let us get rid of it?
Not yet. In the rural areas where universal service is still so much needed, such as my district, there is a paucity of cellular service. In most of my communities, once you get beyond the interstate corridor and the larger towns, there is no cellular service.

I would venture to say that more than half of the people in my district have no cellular service in the communities in which they live, and there is currently no obligation under federal law for a cellular company to build out to serve everyone.

You represent a rural district in the corner of southwest Virginia near Tennessee. What's turned you into a technology activist?
I see the use of advanced information technology as a way to build a bridge between parts of the nation where development is a priority and economic growth, and job creation is a priority in my district and in the American economic mainstream. It is a fact that businesses get a bargain when they locate in rural areas.

Historically, a lot of businesses simply could not do that, because they had to be physically proximate to their clients and their suppliers and their customers. That is not true with the Internet. Now a company can operate portions of its business just as effectively from the most rural place in the United States as it can from the building next to its corporate headquarters.

You're a member of the two committees that have jurisdiction over spam legislation. The Can-Spam Act has been in effect all year, and it hasn't had much of an impact so far.
No, it sure has not, has it?

Will Congress return to the topic of spam any time soon?
The act is in its infancy. We have not had an opportunity for prosecutions to work their way through the system. It takes a while to do the investigatory work necessary for a prosecution, and then the prosecution itself takes time. I think it is too early to really judge its effectiveness.

I will say, though, that this act did not go as far as it should have. There are some things that are frankly beyond the reach of the ability of Congress to address. Many spammers are in countries that do not have extradition treaties with the United States. In some instances, they are in countries that do not even have solid commercial relationships with the United States.

So there may be an international diplomatic component to a long-term successful effort to confront spam. Quite honestly, before diplomatic effort succeeds in persuading these countries that are hosting spam sites to play nice with the United States, we may have technology-based solutions that actually solve the problem.

My guess is that the technology solutions will probably get to the finish line before law-based or diplomacy-based solutions do.