Boucher Bill Raises Ire At House Judiciary Committee

A public shouting match, the likes of which is seldom seen here, is going on between two House of Representatives committees that are of importance to content holders and users.

WASHINGTON -- A public shouting match, the likes of which is seldom seen here, is going on between two House of Representatives committees that are of importance to content holders and users.

The Republican and Democrat leaders of the House Judiciary Committee are criticizing one of the body's own members, and crying foul that an industry bill was routed to a committee other than their own.

At the center of the dust-up are Rep. Rick Boucher, D-Va., who is a member of both the Judiciary Committee and the Energy and Commerce Committee, and his bill, the Digital Media Consumers' Rights Act, H.R. 107.

Boucher introduced the measure in January 2003. It contains a provision that would require accurate and clear labeling of copy-protected product. But the provision that raised hackles would modify the Digital Millennium Copyright Act (DMCA) to grant greater fair use to consumers by letting them circumvent copy-protection measures encoded in digital music and movie media, as long as the copying is for private, non commercial use.

Boucher drafted the bill so that the consumer component was pronounced. The legislative counsel that determines where a bill will be heard therefore gave it dual jurisdiction: firstly, to the Energy and Commerce Committee, and secondly, to the Judiciary Committee. Under House rules, once the primary referred committee votes to pass a measure, the second committee cannot vote down any of its provisions.

Boucher's reasoning for pushing H.R. 107 toward the Energy and Commerce Committee rather than the Judiciary Committee, which has jurisdiction over copyright issues, is that, in his view, the DMCA isn't really a copyright law.

The DMCA, he tells ELW, "is mislabeled, in a sense. It really doesn't amend the copyright law. It 'rides on top' of the Copyright Act, and creates a new offense of circumventing technical protection measures. That's really what it does. It does not alter copyright principles in any way."

That kind of language has aggravated the chairman of the Judiciary Committee, Rep. F. James Sensenbrenner Jr., R-Wisc. Also upset are ranking member John Conyers Jr., D-Mich., and Rep. Lamar S. Smith, R-Texas, chairman of the Judiciary's Subcommittee on Courts, the Internet and Intellectual Property.

Adding to the rancor is the fact that the Boucher bill finally got a hearing before the Energy and Commerce Committee on May 12.

Record and movie executives opposed the bill at the hearing, saying it would leave the door open for hacking pirates. They also testified that such a law would put an unacceptably heavy burden on copyright holders to prove that copying was for an infringing use.

Still, the bill seems to have momentum. It now has 20 sponsors, including Rep. Joe Barton, R-Texas, chairman of the Energy and Commerce Committee.

Adding fuel to the fire, on June 22, Barton issued a clarion call for the bill's passage following a press conference with the Personal Technology Freedom Coalition.

The measure, he said, "ensures the free and fair use of products legally purchased by consumers."

Beyond consumer protection, Barton added a new anti-terrorist wrinkle to what the measure will allow. "The bill fosters technological innovation and supports our nation's national security efforts by (allowing the) breaking (of) encryption systems used by terrorists in cyberattacks," he said.

Barton said his committee plans to mark up and pass the bill in July.

In response, in a written statement, the trio of Judiciary Committee leaders fumed: "We strongly oppose the substance of H.R. 107. This legislation would eviscerate a key provision of the ... DMCA, which is successfully protecting copyrighted works and providing consumers access to more digital content than ever before."

"In fact," Sensenbrenner and his colleagues continued: "a DVD player is now as common a household item as the VCR was 15 years ago, precisely because of the (protections afforded by the) DMCA. H.R. 107 would undo a law that is working and destroy the careful balance in copyright law between consumers' rights and intellectual property rights."

They added: "Furthermore, our strong objections to the substance of H.R. 107 are matched by our objections to what appears to be a bold jurisdictional power grab. The Judiciary Committee has -- and has long had -- exclusive jurisdiction over copyright law. Rest assured, we will wholeheartedly oppose this move in a bipartisan fashion, as we would expect Energy and Commerce Committee leaders to do if we attempted to write energy legislation."

Boucher hints that Sensenbrenner's committee tilts toward the interests of content owners.

"On most issues, where the content community takes one position and where a user community takes another position, the center of gravity of the House Judiciary Committee is on the side of the content community," he says. "That has historically been true, and it's true today. And I think by and large, on a case by case basis, Mr. Sensenbrenner will take those positions."

Boucher confidently predicts that his bill will go forward this session: "I expect the bill to be considered on the House floor this fall," he says.