CONGRESS TO BE CENTER STAGE IN DIGITAL COPYRIGHT DRAMA, ABA IS TOLD

At least one studio representative indicated Hollywood would look to Capitol Hill for new legislation to help prevent film from being slammed by copying as recording industry has been. Lucasfilm Business Development Dir. Tonik Barber said digital audio recording devices prompted legislative solution in Audio Home Recording Act, and “I think ultimately that will be the case with film, to some degree.” Movie industry lawyer Jon Baumgarten said that because interindustry Analog Reconversion Discussion Group wasn’t empowered to require PC or CE makers to use any technology to plug so-called analog hole, that issue would “probably be discussed and debated in other media.”

Skeptics of harsh Internet copyright enforcement also will make themselves heard this fall in Congress, Sharman Networks lobbyist Philip Corwin said. He said Chmn. Coleman (R-Minn.) of Senate Govt. Affairs Committee’s Permanent Subcommittee on Investigations planned at least one Sept. hearing in connection with questions he raised in a letter to RIAA about more than 1,000 subpoenas that group had served recently on individual music sharers. Subcommittee staffer confirmed Sept. hearing was likely, predicated on RIAA’s responses due this week, and focusing on privacy implications, proportionality of response to individual activity and availability of subpoenas without judicial oversight under Digital Millennium Copyright Act.

Senate Commerce Committee Chmn. McCain (R.-Ariz.) plans a hearing, also next month, on a draft bill by Sen. Brownback (R- Kan.) that would bar ISPs from complying with such subpoenas and require disclosure to technology buyers of digital rights management and copy controls, Corwin said. If Verizon loses its court battle against RIAA subpoenas, legislative reversal of outcome would become top libertarian goal in Congress, said U. of Cal.-Berkeley law and information management Prof. Pamela Samuelson.

ABA Annual Meeting Notebook…

CE makers have moderate but clear goals on digital copyright protection, industry lawyer Bruce Turnbull told ABA panel. They want technologies that will do “rough justice” to fair use by permitting time-shifting while curtailing unauthorized mass distribution, he said. They want parity, so they aren’t left in dust by PC makers; predictability, so consumers as well as CE companies are clear on what they can and can’t do; and pragmatism rather than seeking piracy’s complete end, because “the perfect is very much the enemy of the good” in making progress, Turnbull said. Protections will work only if they respect consumers’ legitimate expectations, enhance products’ value to buyers and are transparent to users, he said. Studio lawyer Jon Baumgarten said recent battles had established principle that never got any traction with makers of photocopiers and PCs in earlier battles: “The notion of manufacturer responsibility has taken hold.” Device makers understand they have interest in, and responsibility for, controlling unauthorized copying and distribution in order to encourage release of digital content, Baumgarten said. Encryption and other technical controls can’t stop creation of single unauthorized digital copy required to make work available to world online, Electronic Frontier Foundation lawyer Fred von Lohmann said. He believes they push for flawed controls as hook for licensing requirements that give them veto power over availability of new features they don’t like, he said. Baumgarten said encryption, licensing and Digital Millennium Copyright Act all were insufficient individually but together made reasonable rights-enforcement package.

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Rights clearances present online music industry bigger headaches than technology does, Roxio Gen. Counsel Bill Growney said: “It’s a very arcane, Byzantine system… It’s not like you can just pay [royalties] into escrow and worry about the clearances later.” Legislative reform is one major priority, he said. Downloading individual songs is back in vogue with Apple’s iTunes, but over longer term customers mainly will embrace online music subscriptions for economy, said Growney, whose company is reviving Napster brand for a licensed service due to be released before Christmas. Napster is working on improving digital rights management technology to permit its music to be shifted among customer’s devices without allowing unlimited Internet distribution, and competitors certainly are, too, he said.

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Judges don’t understand file-sharing technologies well, said RIAA’s lead litigator against peer-to-peer, Russell Frackman, who said he was expressing personal view. Judges in those cases have average age of 62.5, he said, and their law clerks might understand technical issues better than their bosses.