DMCA Adjustment Fuels Capitol Hill Debate

There's a lot of buzz on Capitol Hill about a pending bill that seeks to enlarge the "fair use" sections of the Digital Millennium Copyright Act (DMCA). The main provision, The Digital Media Consumers

WASHINGTON--There's a lot of buzz on Capitol Hill about a pending bill that seeks to enlarge the "fair use" sections of the Digital Millennium Copyright Act (DMCA).

The main provision, The Digital Media Consumers' Rights Act of 2003, H.R. 107, would allow consumers to use circumvention software to defeat copy restriction encryption on DVDs and advanced audio to make copies as long as they were copying for non-infringing purposes. In other words, it would change current law that bans such software to banning the conduct of a user.

"H.R. 107," says one industry lobbyist "has more stumbling blocks to overcome than a salmon swimming upstream. But it'll be interesting to watch the journey."

First, the bill must be first passed by two House subcommittees and two full committees--Judiciary and Commerce--before it can go to the House floor for a vote. Should it pass, it must then go to the Senate.

Currently, there is no Senate bill counterpart.

The bill has gotten attention for two reasons. First, it pits the entertainment companies, which oppose the bill, against the Internet and electronic manufacturer industries, and the scholar-research-library communities, which support it.

Second, its authors, Rep. Dick Boucher, D-Va. and John Doolittle, R-Cal., were able to get the support of Rep. Joe Barton, R-Texas, the powerful chairman of the House Commerce Committee. He is one of the 15 co-sponsors of the bill.

To the credit of its authors, the measure contains copyright fair use provisions that the Judiciary Committee must debate, as well as sections calling for better labeling of digital entertainment products, which comes under the jurisdiction of the Commerce Committee.

That the Boucher-Doolittle measure had languished in the Judiciary Committee for nearly 18 months without being scheduled for a hearing only makes the buzz louder.

For one thing, say sources, members of that committee are reluctant to revisit the DMCA, thus admitting that their own initial forging of the 1998 DMCA now is an impediment to researchers and consumers.

Opponents say the DMCA's fair use sections are unfair and draconian because those who want to use software to circumvent copy prevention systems of product they have bought and plan to copy for non-infringing purposes cannot do so legally under present law.

The record and movie industries have been successful in convincing lawmakers on Judiciary that there is now no technology able to discern if a citizen using software to disable copying would be doing so for non-commercial reasons.

And then there's the enforcement dilemma: Granting an exemption to allow honest citizens to disable DVD and advanced audio products, they say, would be tantamount to leaving the back door open in a bad neighborhood.

All of these arguments were debated that the May 12 hearing before the Commerce Committee's Subcommittee on Telecommunications and the Internet.

Support for the measure was led by copyright professor Lawrence Lessig, who had convincing arguments that the DMCA has restricted fair use of digital material. He had less convincing answers about how the content companies can protect themselves from commercial pirates and a general citizenry that already seems to feel there is no onus for downloading and uploading music files for free.

The Recording Industry Assn. of America and the movie lobby has made it clear to Judiciary Committee members they oppose the bill. Now they are doing the same with members who sit on Commerce, say sources.

Cary Sherman, president of the RIAA, says the industry has to educate members of the Commerce Committee. "(The issue) isn't just about commercial piracy, but about ordinary consumers who've become worldwide distributors of our content and who have a misconceived and incorrect interpretation of "fair use" to justify their behavior."

Three big questions are making tongues wag: will the Commerce Committee subcommittee hearing will now spur the Judiciary Committee to give the bill an airing in its subcommittee? Or will it still sit on the bill until a possible vote by the panel forces them to take it up?

Finally, would House passage make the Senate aware that a pro-consumer "fair use" bill might be just the ticket in an election year?

Stay tuned.