LOFGREN, BOUCHER SEEK TO PROTECT AND CODIFY FAIR USE
Two House Democrats are introducing separate bills that seek to ensure consumers flexibility with digital content. Rep. Lofgren (D-Cal.) Wed. proposed Digital Choice & Freedom Act that would codify fair use rights that until now either had not been defined or had been defined by court decisions, not statutes. House Internet Caucus Co-Chmn. Boucher (D-Va.) plans today (Thurs.) to introduce similar bill that would amend Digital Millennium Copyright Act (DMCA) to permit circumvention of copyright protections when executing fair use. Lofgren and Boucher were extremely critical of RIAA Chmn. Hilary Rosen last week at hearing on digital content protection. RIAA declined to comment on bills being introduced in waning days of the 107th Congress.
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“Right now, it is the entertainment industry versus the technology industry,” Lofgren said Wed., “and the consumers are watching from the sidelines.” Her bill would clarify as lawful much of what CEA Pres. Gary Shapiro said recently could be constituted as fair use. Specifically, bill includes provisions for making backup copies of digital works, allowing consumers to sell or give away digital works, permitting them to protect their fair use by circumventing technological protections. Summary language provided by Lofgren’s office said that in House Judiciary Committee report written with passage of DMCA, committee felt one shouldn’t be able to circumvent technology for unlawful purpose but should “be able to do so in order to make fair use of a work which he or she has acquired lawfully.” Lofgren contended DMCA had created unintended imbalance in copyright law in favor of content producers.
Bill specifically would exclude software in its definition of digital content in Sec. 3(c), and that decision by Silicon Valley representative raised eyebrows in entertainment community. Lofgren spokesman defended the exclusion, saying “some software is application-specific,” such as Xbox game or Macintosh program, and unlike CD can’t be played in multiple devices. Lofgren’s bill aims to permit continued flexibility among devices, spokesman said, so software was exempted from bill. However, measure would prohibit shrink-wrap licenses that limited user rights and expectations for entertainment content. That practice of restrictive shrink-wrap licenses was begun by software industry and has been source of contention in push to encourage states to adopt UCITA (Uniform Computer Information Transactions Act).
Several high-tech groups praised Lofgren’s bill, with Computer & Communications Industry Assn. Pres. Ed Black saying it was welcomed after several that offered “extreme proposals that would seek to protect copyright at the expense of other vital concerns.” Public Knowledge Legal Dir. John Mitchell praised restrictions on shrink-wrap licenses, which require consumers to forfeit certain rights in exchange for using media: “We don’t allow employers to require new hires to waive their legal rights under employment laws.” Bill also was backed by Electronic Frontier Foundation, American Library Assn. and Stanford U. Prof. Larry Lessig, who will be in Washington next week to argue for access to copyrighted materials before U.S. Supreme Court in Eldred v. Ashcroft.
Lofgren’s bill would “deny content owners the ability to protect their works by technological means” because it “effectively repeals the anticircumvention provisions” of DMCA, MPAA Pres. Jack Valenti said in statement Wed.: “Content owners would be given a Hobson’s choice of protecting their valuable works by not making them available in digital formats, or losing all control over unauthorized reproduction and distribution.” Valenti said he talked with Lofgren and expressed “our anxieties about this legislation.”
Others in content community weren’t as quick with responses, but there was some concern among industry officials we spoke with that delineation of fair use rights could be obstacle to efforts by content community to distribute works online. There also were questions on necessity of bill, with one official noting that courts had defined fair use broadly. But Lessig said “within the boundaries of the Constitution, it is Congress’s job, not the courts, to strike an appropriate balance for copyright in the face of changing technologies.” In addition, Lofgren said her bill was designed to correct imbalance in copyright law currently in favor of content producers, but those producers told us rampant online piracy suggested imbalance went other way.
Another criticism of Lofgren’s bill in content community was that it would codify digital transmissions as falling under first sale doctrine -- which allows one to sell book or a CD -- because Sec. 109 of Title 17 didn’t address digital works. Lofgren wants clarification that digital works are protected by first sale doctrine, but in summary of her bill she said consumers would be able to give away only one copy and would have to dispose of their digital copy after transaction because, in keeping with first sale doctrine, “if you sell your hard copy of a book, you no longer possess the book.”
Boucher plans news conference today (Thurs.) with co- sponsor Rep. Doolittle (R-Cal.) to unveil his bill. Among groups and companies expected to attend to show support are CCIA, Public Knowledge, CEA, Verizon, Sun Microsystems, Intel and Consumers Union. Boucher has promised DMCA reform legislation for nearly year.