TECHNOLOGY VS. CONDUCT IS VIEWED AS CENTRAL TO FAIR USE DEBATE

That same debate surfaces whenever technology causes legal problems. It’s central to the current debate over spyware legislation, and it was part of the debate during the 1998 passage of the Digital Millennium Copyright Act (DMCA). That debate continued Wed., as the House Commerce Subcommittee on Commerce, Trade & Consumer Protection considered legislation that would rewrite DMCA to permit circumvention of copy-protection technology to engage in fair use of protected content (see separate report, this issue).

CEA Pres. Gary Shapiro was well-armed with analogies to argue against technology regulation. He said Congress doesn’t regulate the speed of cars; instead, it sets speed limits and enforces those limits. He also said “a fork can be used to eat, and a fork can be used to kill people.” Like other supporters of HR-107 by House Internet Caucus Co-Chmn. Boucher (D-Va.), Shapiro said copyright needed to be protected and piracy thwarted, but not at the cost of fair use. Former subcommittee Chmn. Allan Swift (D-Wash.), an ex-DJ who likes to make mix CDs for friends, said “the present statute does not grant the American consumer what anyone is granted, the presumption of innocence. All are treated as guilty.” “The recording industry assumes you're a pirate” under the DMCA, he said.

But MPAA Pres. Jack Valenti said copy protection systems had to be backed up by the law because no technology can ensure that consumers will only practice fair use. “No machine can tell whether you're just making one copy or 1,000 copies,” he said. Valenti cited Ed Felten, the Princeton U. professor who published a way to break DVD encryption, saying no technology could be developed that would permit only personal backups. Valenti and MPAA Counsel David Green said they didn’t believe consumers have a fair use right to make a backup DVD copies.

The DMCA “strikes the right balance,” Business Software Alliance (BSA) Pres. Robert Holleyman said. Regarding excessive regulation of technology, he pointed to the DMCA provision that calls for a U.S. Copyright Office rulemaking every 3 years to grant circumvention exceptions. HR-107 “would leave no anti- circumvention device subject to the DMCA.” HR-107 puts BSA squarely in the camp of those supporting regulations that make criminal the thwarting of copy protection technology -- though the group also is a leader fighting copy-protection mandates on Capitol Hill. Holleyman argued that govt. support of copy- protection measures is necessary here because otherwise piracy would rise, as would content industry litigation. Shapiro, by contrast, said the DMCA itself has led to excessive litigation.

Valenti highlighted divisions over the bill among technology interests. He submitted a letter by the DVD Copy Control Assn. that he said showed the groups involved opposed HR-107. Some of those companies also belong to CEA, Valenti noted. Shapiro discussed the letter with Subcommittee Chmn. Stearns (R-Fla.) during a break, and later testified the letter didn’t show opposition to the bill but rather concerns. He also added that MPAA is a member of CEA, but that he wouldn’t claim to speak on the studios’ behalf on this bill. Valenti said large numbers of computer and IT companies opposed the bill; many of those would be BSA members. But Boucher said his bill was backed by Gateway, Sun Microsystems, Intel, “all of the major local telephone companies” and the U.S. Telecom Assn. (USTA).

Stanford Law Prof. Lawrence Lessig said the DMCA restriction inhibited fair use, and the U.S. Supreme Court said that “fair use is a traditional component of copyright, and if Congress removes it, it raises a fundamental First Amendment problem.” Lessig cited the decision in which he lost an effort to overturn the Sonny Bono Copyright Extension Act. He said the DMCA “indirectly removes fair use.” But Valenti and RIAA Pres. Cary Sherman said fair use was alive and well, and Green said the DMCA doesn’t stop anyone from showing part of a DVD in a classroom. The issue is whether an entire DVD may be copied, and MPAA say it may not.

The DMCA still means that consumers are presumed guilty, Lessig said. HR-107 “doesn’t mean that all people, average people, ordinary people will break the law.” He said Congress should pass laws against, and law enforcement should prosecute, those who don’t respect copyright. But Sherman said in the age of easy file-sharing, the issue came down to whether one person could copy a song and make it available online.