Congress has been busy. In recent months dozens of bills have been introduced that deal with computers, privacy and security. I have written other articles that have examined a bill that would permit copyright holders to disrupt computers that are used to illegally distribute protected content and that deal with privacy protection for information collected on-line.
Two notable bills were introduced in early October that counter the recent trend of expanding protections available to copyright owners. Representative Zoe Lofgren (D-Ca) introduced the Digital Choice and Freedom Act of 2002 (H.R. 5522) and Representatives Rick Boucher (D-Va) and John Doolittle (R-Ca) have introduced the Digital Media Consumer's Rights Act of 2002 (H.R. 5544.) A common purpose of both bills is to reaffirm the concept that a person may legally copy some content even if that content is protected by an anti-tampering system. Both bills have other provisions but share that one trait.
Rep. Lofgren's proposal is to reaffirm the concept that once a person legally obtains a copy of information that is protected by copyright, that person can make private copies of the material so that it is usable in other formats. Section 123 of her bill provides, "It is not an infringement of copyright for a person who lawfully obtains a copy ... of a digital work or who receives a transmission of a digital work, to reproduce, store, adapt or access the digital work: (1) for archival purposes ... and (2) in order to perform or display the work, or an adaptation of the work, on a preferred digital media device, provided that such performance or display is not public."
It even provides that the sale of some decryption devices would be legal if they were limited to allowing fair use by persons that had legal copies of materials. The copyright owner would have the option to prohibit the distribution of third-party solutions by providing its own method for making free copies.
The bill sponsored by Representatives Boucher and Doolittle begins with certain requirements that distributors of music CD's must prominently disclose on the packaging that the CD has copy protections. Violations of that part of their bill would be treated as false advertising and fall under the jurisdiction of the Federal Trade Commission. The fair use issue is covered by section 5 of the bill where it provides, "it is not a violation of this section to circumvent a technological measure in connection with access to, or the use of a work if such circumvention does not result in an infringement of the copyright in the work."
Why are these bills pending? A little background will help. Since the days of the VCR it has been legal to make a copy of broadcast television programs in order for the consumer to view the material later or multiple times as long as the consumer did it for personal use. The Supreme Court ruled in Sony Corp. v. Universal City Studios, Inc. 464 US 417 (1984) that although the Copyright Act protects the owner of the copyright, Section 107 of the act allows certain copies without the permission of the owner. A significant portion of that section currently provides "the fair use of a copyrighted work, including such use by reproduction in copies or phono-records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The widespread and legal use of computers to burn copies of music CD's is one result of the Sony case. However, in that case the Court made it clear that Congress could always change the law. The Court noted, "It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written."
Recent cases indicate the passage of the Digital Millennium Copyright Act may have done just that by changing the balance between protection and fair use. It was passed in 1998 and has been interpreted as prohibiting the use of any means of duplicating the material if the original copy is protected by anti-tampering technology. Although the copy would be legal as fair use, finding a way around the anti-tampering mechanism is illegal.
As you may have noticed, anti-tampering schemes are now incorporated into music CD's, DVD's and other media. If the current trend continues it will not be possible to make perfectly legal copies because the method to make the copies has been outlawed. Hence, the authors of these bills hope to preserve those consumer rights.
Neither bill has much chance of passage before this Congress adjourns later this year. However, as the Washington Post noted on October 4, 2002, the authors are setting the stage for a full review of the issue in the next session.
