DEFINING FAIR USE SPURS CONTENTIOUS DEBATE AT HOUSE HEARING

“Massive infringement is going on in peer-to-peer networks and that is a concern, obviously,” said Rep. Lofgren (D-Cal.), author of bill in 107th Congress that sought to protect digital fair use. But she echoed some university witnesses in saying “clearly there are noninfringing uses [of P2P] as well and I hope universities will tread lightly.”

Hearing by House Judiciary Courts, Internet & Intellectual Property Subcommittee was its first under new Chmn. Smith (R- Tex.), and while many members suggested legislative action was increasingly likely, consensus on fair use appeared elusive. RIAA Chmn. Hilary Rosen focused her testimony on efforts to reduce campus copyright infringement to permit pay services to thrive, but didn’t address fair use. University witnesses agreed with Rosen on need to thwart criminal activity but cited other university priorities. Pa. State. U. Pres. Graham Spanier, who is co-chmn. of Joint Committee of Higher Education & Content Communities with RIAA Pres. Cary Sherman, said enforcement needed to co-exist with “principles that are so fundamental to higher education” involving privacy of students: “There are certain lines we're trying not to cross.”

Subcommittee’s ranking Democrat Berman (Cal.) took issue with university witnesses on topic, suggesting “there are some flaws in your software.” He said universities blocked legal transmissions such as spam but not P2P traffic, even though some universities were finding 75% of their network traffic involved others’ removing files from student computers on P2P networks. “I couldn’t agree more,” Berman said, reminding witnesses he never had been opposed to P2P networks (in his legislation last year to permit content providers to interfere with illegal P2P transactions, he didn’t seek to outlaw P2P networks). But Berman said he couldn’t understand why university would permit student to make copyrighted material available for upload “to millions of people.” Universities attempting to control illegal file sharing, Spanier said, are trying to avoid “throwing the baby out with the bath water.”

“Within the higher education community,” U. of N.C. Vp- Information Resources Robyn Render said, creation and use of intellectual property “must be carried out in the context of academic freedom and fair use -- interests that are sometimes in conflict with those of the entertainment industry.” She said “federal legislation that would force policies and practices prohibiting acceptable and legitimate usage of P2P technologies would threaten the central values of the higher education community.”

Rep. Weiner (D-N.Y.) agreed with Berman that universities might not be doing enough out of concern for fair use. He acknowledged that if universities blocked P2P transactions for students that some legitimate file sharing would be stopped, but called that “a small price to pay.” Hale said if store were selling drugs and popcorn “it makes sense to shut down the store” but said serious attempt to thwart file-sharing across board “could cause harm to the entire system.” “Not a lot of research has been done on this topic,” he acknowledged.

First formal meeting of Joint Committee’s Legislative Task Force was thwarted by last week’s snowstorm, but Rosen said she was “confident that this dialog will strengthen the relationship between us.” Spanier said task force should report back to the full Joint Committee “later this spring, and we will soon thereafter conclude our formal joint activity with a final review of task force work, formulation of recommendations and a consideration of final steps.”

Most visible advocate of fair use in House wasn’t in attendance Wed., even though majority of subcommittee members did attend hearing. House Internet Caucus Co-Chmn. Boucher (D-Va.) is sponsor of bill (HR-107) that would amend Digital Millennium Copyright Act to protect fair use with digital content. However, Boucher has unique distinction of also being on House Commerce Committee, and that committee’s Telecom Subcommittee was holding hearing simultaneously on FCC telecom policy.

Smith in last Congress was co-sponsor of Berman legislation that would have aided content community in interfering with unauthorized file sharing on P2P networks. Berman has said recently he is unlikely to introduce that specific bill due to waning support in Hollywood, but he told hearing witnesses that legislation was likely if private parties failed to work out compromise. Berman warned: “Don’t let the existence of a process be the answer.” He echoed full committee ranking Democrat Conyers (Mich.) in confirming growing likelihood of committee action.

However, Conyers expressed much more concern about prospect of legislative action. He said many members of full Judiciary Committee “are ready to take action and it will probably go over the line in terms of privacy” and other matters. “I have a solution,” he said, proposing that content and technology industries “gather around a table… and let’s fashion a solution that we all agree with, or you're going to get something none of you like.” In statement, Business Software Alliance Pres. Robert Holleyman said “the technology industry is working closely with content creators to develop tools and technologies to combat the illegal uses of P2P.”

However, several members at hearing expressed exasperation at lack of progress from private-industry talks. “We in Congress want to see some serious action among yourselves,” Weiner said, instead of “just convening a lot of roundtables.” “We're pussyfooting around this” topic of piracy, he said, accusing university witnesses of being “relatively timid.” “There’s a general consensus on this panel and probably in Congress that something has to be done,” Weiner said: “We're only going to wait for so long, wait for private-sector discussions.” Conyers, meanwhile, emphasized that he was meeting regularly with full committee Chmn. Sensenbrenner (R-Wis.), Berman, House Internet Caucus Co-Chmn. Boucher (D-Va.) and Rep. Cannon (R-Utah) to assess legislative options.

Rosen praised efforts to date made by many universities but said Congress had a role as well: “Many universities and colleges receive federal and state taxpayer money, so you have a fiduciary responsibility.” Spanier of Pa. State U. said it was “hard to say” how effective his university had been in reducing piracy. He said that by “throttling the pipe” or restricting bandwidth, they had reduced “gross infringement” by a small number of students, but that unauthorized file sharing no doubt was continuing to occur.

Spanier said his university received 153 complaints from content community in 2001 related to Digital Millennium Copyright Act (DMCA) and that each time Pa. State sought to “comply vigorously” and suspended student access until the situation was resolved. Rosen said that on whole universities were more responsive to content companies than were ISPs as far as targeting potential infringers was concerned. She is strong supporter of DMCA and was involved in its authorship. However, at hearing she raised possibility of supporting a rewrite. RIAA recently won first rounds of suit against Verizon in attempt to gain identity of DSL subscriber believed to be engaging in copyright infringement. Verizon is seeking stay of that decision and is appealing, but she said “if we lose this pending Verizon case, which I don’t think we will, I may come back and say the law isn’t correct.”

Rep. Jenkins (R-Tenn.) questioned why no one knew of a student who had been prosecuted for copyright infringement, as one guilty of assault or murder on campus would have been. Spanier said university mission was “first and foremost” to educate students, and administrators preferred to work through university process rather than introduce law enforcement. Rep. Waters (D-Cal.) said universities “are not going to criminalize middle-class students,” but someone illegally file-sharing in inner-city work center probably wouldn’t get the same soft treatment. “They're breaking the law,” Waters said of student file sharers, and told university representatives that “until this committee or the university is willing to do something about this, you're just wasting our time.” Rep. Hart (R-Pa.) said he agreed. Rosen said recording industry hadn’t yet sought prosecution of a student, instead sending letters of warning to universities, but “nothing’s off the table.”