Internet Perspectives

Boucher: DMCA-Fixing Bill "Will Win"

by Richard Koman

Can you be convicted of breaking into your own property? In Norway the answer was no, as a panel of judges found that "someone who buys a DVD film that has been legally produced has legal access to the film." In the words of "DVD Jon" Johansen, the author of the DeCSS software that descrambles the copy-protection software on DVDs, "As long as you have purchased a DVD legally then you are allowed to decode it with any equipment, and can't be forced to buy any specific equipment."

In the U.S., the answer is not at all clear. After the arrest and release of programmer Dmitri Sklyarov, his employer, Russian software developer Elcomsoft, was hauled into court for violating the Digital Millennium Copyright Act with its Adobe e-book reader--software that breaks Adobe's copy-protection scheme and allows users to make copies of the text. Elcomsoft was acquitted under the reasoning that while the software is in violation of the DMCA, the company's intent was not to support illicit copying but to facilitate personal copying.

Copyright law in the U.S. has always included the notion of fair use and personal use. As decided in the Betamax case, consumers have the right to make copies of copyrighted materials for their own personal use, such as capturing a program to watch at a later time. But the Digital Millennium Copyright Act makes it a crime to circumvent copy-protection schemes or to manufacture, distribute, and so forth, technology "that is primarily designed ... for the purpose of circumventing" such schemes. In other words, you have the right to copy digital materials you buy, but it's illegal to circumvent the technology that prevents you from copying.

This is the essential contradiction addressed by a bill recently introduced by Representatives Rick Boucher (D-Va.) and John Doolittle (R-Calif.), the Digital Media Consumers' Rights Act (HR 107). To learn more about the bill, the issues, and its chances for success, we talked to Congressman Boucher by telephone.

Richard Koman: What is the basic problem with DMCA and what does your bill propose to do to fix it?

Rep. Boucher: My basic goal is to make sure that the consumers of digital media have the same rights to use the media; in a way that is convenient to them in the home environment; in a way that does not infringe copyright law; and in a way that the owners of more traditional, analog media enjoy today. The Digital Millennium Copyright Act infringes upon those traditional fair use rights--to be able to make the copies necessary in order to move materials from one player to another, from a recorder to a player, or a player to a recorder, within the home environment--because the law passed in 1998 makes it unlawful to circumvent a technical-protection measure that guards access to a copyrighted work without regard to the reason that the circumvention occurs.

So, for example, it is a circumvention of the law if you to play a DVD on a Linux-based operating system--it's illegal to do that. Although in doing so, you're only exercising what most people would agree is a fundamental right that the owner of media should have--to be able to use it in the most convenient way. If you want to back up the text of an electronic book, you will have to bypass the technology that prevents you from doing that. And in doing so, again, you are only exercising a fair use right. But the law as it exists makes it unlawful even for those innocent purposes. And so what I am seeking to do is to restore fair use and make it as applicable in the digital era as it is with analog technology.

The bill is very simple. It says that if a person is bypassing for a lawful purpose, then the bypass itself is lawful. If a person bypasses for the purpose of piracy or otherwise infringing the copyright, then the bypass and the infringement would remain unlawful. The bill also says that the manufacturer of technology that has multiple uses, some of which are potentially infringing, and others of which are useful, will be permitted under the DMCA; and that the manufacturer will not be punished under the DMCA, if the technology is capable of substantial noninfringing uses.

Koman: That was the test in the Supreme Court ruling in Betamax, right?

Boucher: That's correct. That is the fundamental Betamax test. The Supreme Court found 20 years ago that the Betamax is lawful, that the manufacturer does not have contributory infringement liability under the Copyright Act because the Betamax facilitates time-shifting, which the Supreme Court declared to be a fair use. And once it was demonstrated that time-shifting was facilitated, the court said it didn't have to look any further. The presence of a substantial noninfringing use makes the technology acceptable under the copyright law. That decision was effectively overturned by the DMCA because the DMCA creates another test and a far less useful test from a standpoint of encouraging innovation. [The DMCA asks], what was the intent of the manufacturer at the time he designed, manufactured, and distributed the product? Did he intend that it primarily be used for an infringing or a noninfringing purpose?

Now on its surface, people might say that sounds OK. But the problem is that a manufacturer can have a perfect intent--enabling people to make copies that are well within ... fair use, but he has no say in how a court and a jury ten years down the road will interpret his present intent. And if in fact, the technology winds up being used substantially for infringement, it could well be determined years later that he intended it primarily to be used for that purpose. So there's a chilling effect on the willingness to introduce useful new technology that is capable of multiple uses, some of which are infringing, some of which are legitimate.

I think the Supreme Court got it right, and I want us to return to that time-tested and well-honored and very practical doctrine that says that all you have to do is have a substantial noninfringing use and then you need not fear future liability.

Koman:In 1998 with the passage of DMCA and the Copyright Term Extension Act, Congress handed some major weapons to the copyright industries. Now in 2003, is the pendulum shifting back a little bit?

Boucher: In 1998, there were very few voices speaking up on behalf of the consumers of digital media, and the technology industry was invisible in the debate. A lot has changed since then. We have witnessed the manifestation of a large amount of concern on the behalf of technology companies about how far the pendulum has swung towards the entertainment industry. And there were threats to take it even further. The Hollings bill, which was introduced last year, would have required that a government-mandated standard be applied to every electronic device to prevent unauthorized copying. So the technology industry has now responded and is fully in support of the bill that I have introduced.

At my press conference, representatives from Intel, Gateway, Verizon, Sun Microsystems, Philips Electronics, the Consumer Electronics Association, the Computer and Communications Industry Association, and others representing the technology community endorsed the bill. We also have a broad consumer interest represented, including Consumers Union, Public Knowledge, the American Association of Universities, and the American Library Association, among others. There's a very broad coalition of public interest groups and the technology industry urging that this bill be passed to rebalance copyright law and reestablish fair use. So is the pendulum shifting? Yes, I think it is. I think it is shifting back to the center, back towards what I hope will eventually be the restoration of balance in the copyright law through the passage of this bill.

You know ever since copyright was introduced as one of the early statutes of our nation, there has been a determination to balance the rights of copyright owners with the rights of the users of intellectual property. In the late 1990s, the user side of the equation was undervalued and the entertainment side, the copyright-owner side was overvalued. And we are now beginning to see the results of a law that frankly went too far. With the prosecution of Elcomsoft--now the court reached the right decision and acquitted Elcomsoft--but a conviction could have been just as foreseeable because the law clearly opens the door to a conviction on that state of facts. And the next time a company does something similar, a different court could very well reach a different decision. The fact that the court reached the right decision in this case, in no way eliminates the need to pass this bill. We need to pass this bill to make sure that all courts from this time forward respect the rights of manufacturers who are making useful technology.

Koman: In the absence of the Supreme Court fully overturning the extension act, do you see a need for Congress to revisit the extension?

Boucher: I'm not going to undertake that fight, at least not now. We have what I think is a more important issue before us and that is to eliminate the potential for enormous harm that the DMCA will cause. The DMCA is one of the greatest barriers to innovation that Congress has ever adopted, in my opinion. It also works counter to the basic purposes of its main supporters because the entertainment industry will ultimately suffer as people are restricted in their ability to buy digital media. If they are restricted from using media in the home in the way in which they want to use it, the value of the digital media declines--there won't be as much demand for it--and if the demand for digital media doesn't mature, the very creators will be the ones who suffer the most. The market simply won't be there for their products. I'm hoping the entertainment industry will realize the value of passing the measure that I've put forward because I have no doubt it will serve to expand the demand for the very products they're creating.

Koman: What would you say to Jack Valenti when he says allowing copying will just mean instant Internet distribution and piracy?

Boucher: A certain amount of piracy is going to happen no matter what, and the DMCA isn't going to stop it. If for example, the concern is that somebody is going to take a DVD, use the DeCSS to circumvent the copy protection on the DVD, and put it up on the Internet, frankly that's going to happen whether my bill passes or not. My bill doesn't do anything to make that lawful; it would still be unlawful to do that; all that my bill says is that you can bypass for a lawful purpose. Distributing over the Internet is not a lawful purpose. If a person is intent on doing that, he's going to do it, whether there's one law that prohibits it or two laws that prohibit it. The mere fact that he can't circumvent for any purpose today doesn't do anything to deter that kind of conduct; it's still going to happen and it would happen even if my bill passes. It will happen either way. And my bill doesn't do anything that would make it more or less likely that people bent on committing piracy are going to commit it. What my bill does is free the innocent consumer to use digital media in the way in which he wants to use it.

Koman: It's not just an issue of consumerism.

Boucher: No, that's right. There are a lot of other arguments for this. For instance, libraries are concerned that what DMCA does is give to the originator of content the ability to bring us to a pay-per-view universe anytime people access copyrighted materials. Libraries are concerned that in the future they're going to get their materials in digital form, it's going to protected with a password, and then the originator has total control over the work, and he can require that 50 cents be charged every time a kid comes in and wants to view this material. So what's available for free today could in the future only be available under a pay-per-use structure. And this is one of the reasons that the libraries are so supportive of the measure that I've put forth. A large number of library associations representing every library of every kind in the nation stand behind this bill.

Koman: Does your bill have anything to say about the broadcast flag?

Boucher: It doesn't. We don't address that issue and frankly the DMCA doesn't address that issue. It's legislation that may be considered in the House Commerce Committee in order to facilitate the transition to digital television. I'll have to confess some sympathy for an approach like the broadcast flag and I'll tell you why. My major goal in doing all of these things is to get as much content as I can into the hands of consumers, in a way that they can use it fully. That really is my orientation. Let's get digital media into the hands of consumers and give them the freedom to use it.

The broadcast flag is really necessary in order to do that. There's an agreement now between the cable and satellite industries on the one hand and the motion picture studios on the other hand for a technical standard that will protect against unauthorized copying the high-value motion pictures that are delivered to homes by means of satellite and cable distribution. And there's an interface device to which the standard can be applied that would reside between the consumer's television set and the originator of the product. And the cable and satellite material would also have to go through this interface device. So they've got that worked out. What they don't have worked out is a way to protect the high-value content that's delivered to the home and to the digital TV set by over-the-air television broadcast.

And I represent a rural area. I have a lot of constituents who don't get cable or satellite, and still depend on rabbit ears and outdoor antennas in order to get television. Nationwide, that number's about 15 percent of homes; in my district it's probably twice that percentage. ...Millions and millions of Americans still rely on over-the-air broadcasts for their television. Now my fear, without a way to assure the motion picture studios that their highest-value content is reasonably safe when it's delivered by over-the-air TV broadcast, is if we don't do that, they may well decide to make their highest-value content exclusive to cable and satellite, and just not release it for over-the-air broadcast. Then the networks are not going to have it, the local TV stations are not going to have it, and 30 percent of my constituents are not going to see it, and that's not in the public interest. The broadcast flag standard actually allows all of the things that I want to be done in the home. It allows copying of the over-the-air signal just as it will cable- and satellite-delivered signals, in accordance with the legitimate expectations of consumers that they be able to make copies. For instance, if it's really an over-the-air broadcast, they can make unlimited copies within the home but they can't upload it to the Internet. But that's fine; we don't want Internet distribution of this stuff anyway, and I don't think we ought to have Internet distribution of digital content that's purchased in the store. It's fine to continue to keep that illegal.

Koman: So the flag wouldn't infringe on people's ability to do time-shifting and media-shifting?

Boucher: That's right, that's exactly right. And that is part of the agreement for the broadcast flag. It will have a set of home-recording rules attached that will allow people to make the copies in their home necessary to use the digital content in the way that is most convenient to them. And I'm concerned if we don't do something along this line, they'll never get the content do begin with. Now my view is not shared by a lot of people who are my allies in the DMCA fight, so, as you well know, this is a controversial subject, but I understand it pretty well and my analysis is the broadcast flag isn't really going to do any harm.

Koman: What are your predictions for the success of the bill in the House?

Boucher: I'll a make a broad prediction and that is that we will pass this bill.

Koman: This year?

Boucher: I'm not going to give you a time frame. It took six years to pass the DMCA. There was a long maturation process for that. I'm not going to give you a prediction on the year in which it's going to pass, but it's not going to take as long as it took for DMCA. There is a groundswell of support around the country for this measure. There is an organization called that has acquired 60,000 or 70,000 members without even advertising. This organization is organized around amending DMCA. They would probably prefer a little different approach than the one I'm taking, but the fact that they have so many people signed up to this basic cause shows you the groundswell of support that there is. This unanimous voice of the technology industry here in Washington D.C. in support of this measure is a major sea change and that's going to help propel us forward. I will take the technology industry and people speaking in the public interest any day against the Hollywood studios and the book publishers and the recording industry. I'm just confident that the public interest and the technology industry standing together will win.

Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.

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