Congress hears DMCA testimony

Compromise amendments likely

The Digital Millenium Copyright Act is under threat from key changes sought by opponents, and a Congressional committee was hearing testimony this week.

Faultline has campaigned not only for the re-drafting of key elements of the DCMA, but also for changes to all of the other "photocopy" legislation (using precisely copied wording) that has appeared around the world. There are 179 signatories to the World Copyright Treaty, that either have, or intend to bring in, similar laws to their countries.

That legislation owes much of its existence to the fuel-injected lobby power of both the Recording Industry Association of America and the Motion Pictures Association of America, and both these organisations were in debate at the Congressional Commerce committee called to review a bill that is being called the Digital Media Consumers' Rights Act and abbreviated to HR 107 - the number it goes by in Congress.

One of the main changes is to decriminalise the bypassing of copy protection as long as it is to support personal use. At the moment bypassing the copy protection, or owning tools that could bypass it, is illegal on a DVD or music CD, regardless of what you do with the copies you make after bypassing the protection.

Cary Sherman, president of the RIAA said that HR 107 would allow the sale of hacking tools that would bust through the Digital Rights Management of iTunes and other services if the hacker is using the copies for "non-infringing purposes."

His view was that there is no way to assure that any tool is only used for non-infringing purposes and that the only way to make this possible was to impose a tech mandate for copy controls, which HR 107 does not contain.

And he went on to say that it is impossible to create a technology that will permit "fair uses" while prohibiting other uses. Which is strange given the evidence of Robert Moore, CEO of 321 Studios, a company that has recently been banned by a judge from selling its DVD backup tools which bypass copy protection. One of his points was precisely that his technology did, indeed, prevent fair use copies being used for copyright infringement.

He said, "The real, practical and very pressing question dramatically highlighted by the experience of 321 Studios is simply this - if consumers can make a personal copy of an audio CD they've bought to put on their iPod or play in their car; if consumers can use a VCR or TiVo to make a tape or digital copy of a movie on broadcast or cable TV and if consumers can use conventional and digital photocopiers, and digital scanners, to reproduce pages from a book and if consumers can make a backup copy of a computer program like Windows - then, how can it be that consumers are criminals for making a backup copy of a DVD they've bought and paid for and why is our company, indeed any technology company, criminal for selling them the digital tools that they must have to make their rights real?" Which sums up the issues pretty well.

Moore made it clear that anyone trying to use 321 DVD Copy to create copies for piracy must be mad, given that you can only make one DVD copy at a time and this can take over an hour and it retains the same copy protection on the copied disk as it does on the original.

Evidence from Peter Jaszi, Professor of Law at Washington College of Law American University told the committee that "In the anti-circumvention provisions of the DMCA, Congress put 200 years of legal, cultural and economic achievement at risk. Rather than promoting long-term security for copyright owners, the DMCA has actually done the opposite. Its enactment has helped to trigger a disastrous decline in the public's respect for copyright on which the success of our system depends. HR 107 would undo this misstep preserving the essential features of Sec. 1201 while correcting its excesses." Section 1201 is the part of the DMCA that bans bypassing copy protection.

The likely outcome is not to pass hasty legislation that amends the DMCA, but to take a year or so to come up with compromise amendments which reduce the draconian elements of the Act without overly diluting it.

© Copyright 2004 Faultline

Faultline is published by Rethink Research, a London-based publishing and consulting firm. This weekly newsletter is an assessment of the impact of events that have happened each week in the world of digital media. Faultline is where media meets technology. Subscription details here.

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