Initiating what is certain to be a contentious debate during the 108th Congress, U.S. Representatives Rick Boucher (D-VA), John Doolittle (R-CA), Spencer Bachus (R-AL) and Patrick Kennedy (D-RI) introduced on Tuesday the Digital Media Consumers' Rights Act with the announced goal of protecting the Fair Use rights of the users of copyrighted material and, thereby enabling the consumers of digital media to make use of it in ways that enhance their personal convenience. The legislation (H.R. 107) is identical to that which Boucher and Doolittle introduced during the Fall of 2002.
Maintaining that Fair Use rights are severely threatened with respect to the consumers of digital media, the legislators propose amending a 1998 law, the Digital Millennium Copyright Act, which was enacted at the behest of motion picture studios, the recording industry, and book publishers.
"The fair use doctrine is threatened today as never before. Historically, the nation's copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the Fair Use rights of the users of copyrighted material," Boucher said. "The re-introduced legislation will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work," Boucher explained.
The bill addresses two key provisions of the 1998 law which prohibit the circumvention of a technical protection measure guarding access to a copyrighted work even if the purpose of the circumvention is to exercise consumer Fair Use rights. The bill re-introduced this week would limit the scope of the prohibition to circumvention for the purpose of copyright infringement. Circumvention for the purpose of exercising Fair Use rights would be permitted under the legislation.
"We believe it is entirely proper to outlaw circumvention for the purpose of copyright infringement; however, a person who is circumventing a technical measure solely for the purpose of using that material under classic Fair Use principles should be free to do so," Doolittle said.
The bill also amends the provisions of the 1998 law which prohibit the manufacture, distribution or sale of technology which enables circumvention of the protection measures. Under the current law, trafficking in those technologies is a crime if the technology was primarily designed to be used for copyright infringement. Claiming that this legal standard is too subjective to give manufacturers confidence to introduce new products, the legislation would instead focus on whether or not the technology had substantial non-infringing uses. If the technology is capable of substantial non-infringing use, the manufacture, distribution, and sale of the product would be lawful under the bill they have sponsored.
"Without a change in the law, individuals will be less willing to purchase digital media if their use of the media within the home is severely circumscribed and the manufacturers of equipment and software that enables circumvention for legitimate purposes will be reluctant to introduce the products into the market," Boucher added.
The lawmakers also would direct the Federal Trade Commission to promulgate a regulation requiring that "copy-protected CDs" be properly labeled.
"The few copy-protected CDs which have been introduced into the U.S. market to date are inadequately labeled and create broad consumer confusion," Boucher said.
"We are not proposing to outlaw the introduction of copy-protected CDs. We, however, want to ensure that if copy-protected CDs are introduced in larger volumes, consumers will know what they are buying," Doolittle added.
Supporters of the Digital Media Consumers Rights Act include Intel, Verizon, Philips Electronics North America Corporation, Sun Microsystems, Gateway, the Consumer Electronics Association, Computer and Communications Industry Association, the Association for Computing Machinery, the Computer Research Association and a variety of trade associations representing technology companies, the American Library Association, the American Association of Universities, the National Humanities Alliance, the Digital Future Coalition, the Consumers Union, the Home Recording Rights Coalition, the Electronic Frontier Foundation, Public Knowledge, the National Writers Union and other organizations representing the public interest and the consumers of digital media.