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Bill Would Protect "Fair Use" Digital Content Copying
Posted Aug 12, 2003 Print Version     Page 1of 1

Ever since the Digital Millennium Copyright Act (DMCA) became law in 1988, fair-use advocates have been crying "foul!" Arguing that the act leaves little or no room for legitimate time- or space-shifting of music and movies (i.e. a copy of Tom Petty's The Last DJ to keep in the car or a copy of Sex and the City to watch at your convenience or share with a family member), DMCA opponents found few allies in Congress willing to make their case in the face of powerful lobbies from the recording and motion picture industries.

Enter California Rep. Zoe Lofgren, who in October unveiled the Digital Choice and Freedom Act of 2002, which would amend the DMCA to allow "fair use" copying and let consumers bypass copyright protection technology as long as they intend to use the content legally. Thus, Lofgren's act—which her office says is months away from its final draft—also stands in opposition to the so-called Hollings Bill, which would require consumer electronics manufacturers to build into their products technology that would limit or prevent consumers' ability to make copies of music and movies.

"Consumers need a voice in this debate," Lofgren said in a statement upon the act's introduction. "Right now, it is the entertainment industry versus the technology industry, and consumers are watching from the sidelines." Citing a slew of court cases including the Sony Betamax case of 1984, Lofgren's draft argues that the DMCA "endangered the rights and expectations of legitimate consumers" and shifted the balance of the copyright versus fair use debate in favor of the copyright holders. Lofgren notes that the shift was unintentional on the part of the DMCA's authors, quoting a House Judiciary Report that accompanied the DMCA as saying "An individual should not be able to circumvent in order to gain unauthorized access to a work, but should be able to do so in order to make fair use of a work which he or she has acquired lawfully."

The Digital Choice and Freedom Act includes provisions that specifically support consumers' rights to make copies for "archival purposes" and "in order to perform or display the work, or an adaptation of the work, on a preferred digital media device, provided such a performance or display is not public." It also states explicitly that consumers have the right not only to "circumvent" copyright protection, but also create and market technology to allow such circumvention—as long as that technology is designed for fair-use purposes.

While Lofgren's act doesn't mention DeCSS, it seems to stand in opposition to a U.S. Appeals Court ruling earlier this year that prohibited the posting of DeCSS encryption technology. ( Surprisingly, the Recording Industry Association of America and the Motion Picture Association of America, the two lobbies most vocal in their support of the DMCA and extending copyright protection, have been silent on Lofgren's proposal. Neither association had any comment on the Digital Choice and Freedom Act at press time.

While the RIAA and MPAA have been silent about Lofgren's bill, consumer rights advocates expressed their enthusiastic support immediately. Among them was Stanford Law School Professor Larry Lessig, founder of the Stanford Center for Internet and Society. "Within the boundaries of the constitution, it is Congress's job, not the courts, to strike an appropriate balance for copyright in the fact of changing technologies," Lessig said in a statement. "This is an extraordinarily valuable step towards finding that balance, and restoring Congress to its proper role."

Soon after Lofgren introduced her proposal, Virginia Rep. Rick Boucher presented his Digital Media Consumer's Rights Act of 2002, which would require that manufacturers of copy-protected CDs clearly label those titles. Some copy-protected CDs won't play in personal computers or on some disc players; Boucher said in a statement that he believes it's crucial that consumers know a disc's limitations before they purchase it. The few copy-protected discs already in circulation—such as Universal Music's More Fast and Furious, released in late 2001—include no such labeling.
--Eric Schumacher-Rasmussen

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