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TechnologyDaily Mobile
Emergence Of The 'Fair Use' Lobby
by Bara Vaida
Grassroots momentum is building behind the advocates for consumers' "fair use" of copyrighted materials, and that momentum may challenge the entertainment industry's traditional clout with lawmakers as the Motion Picture Association of American (MPAA) and Recording Industry Association of America (RIAA) push legislation aimed at fighting intellectual property theft.
The catalyst behind the growing fair-use movement is legislation that would mandate technology to manage digital rights. Introduced by Senate Commerce Committee Chairman Ernest (Fritz) Hollings, D-S.C., the bill would mandate a technology solution to content piracy and could make it impossible for consumers to copy music, television programs or movies. Fair-use advocates say current copyright law gives consumers that right.
"The Hollings bill was a real wake-up call to the many forces that sympathized on the fair-use issue but didn't have anything to lobby on together," said Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation. "Now we are starting to see a lot of people are starting to get fed up, and all these forces [are] feeding together [over Hollings]."
The Chain Of Anti-Piracy Events
The entertainment industry is pushing for greater control over digital distribution of content because it is so easy to make illegal copies of music, movies and other protected works and then distribute them over the Internet. The industry sought to prevent such piracy via the 1998 Digital Millennium Copyright Act (DMCA) but now is pushing for new controls because it has been so difficult to stop such piracy.
Their lobbying efforts, however, combined with several events, have created the potential for the first consumer backlash to the content industry since MPAA President Jack Valenti tried to outlaw the home videocassette recorder in the early 1980s.
The events include: the rise and demise of the popular Napster music-sharing Web site; the arrest of Russian computer programmer Dmitry Sklyarov for his role within a company that made software to circumvent the encryption of e-books; an effort by the recording industry to impose royalty fees that webcasters say are too high; the introduction of compact discs that cannot be played on computers and may even cripple computer equipment; and a court order mandating that Sonicblue track the habits of people using its digital recording devices and share the viewing data with studios and television networks.
The Hollings bill, S. 2048, heightened the outrage upon its introduction in March.
"Things have been bubbling away for years now," said Miriam Nisbet, legislative counsel in the Washington office of the American Library Association (ALA). "Now we are seeing a buildup of all those things ... and Hollings has gotten people very focused."
Perhaps the best manifestation of the greater focus is DigitalConsumer.org, a grassroots organization led by Excite co-founders Joe Kraus and Graham Spencer. The two say they have attracted 35,000 to 40,000 members in the past two months.
The organization is not only fighting the Hollings bill but also is calling for Congress to pass a bill of rights for the digital age to codify consumers' fair-use rights. The manifesto would guarantee that consumers could record shows on digital TV and watch them later, copy songs off compact discs and play them in digital devices, make backup copies of original copyrighted materials they purchased, and use legally acquired media on their platform of choice, such as watching TV on a computer or listening to music on an MP3 player.
"Consumers have clear fair-use rights that have been supported through different court cases, and those rights are under attack by new pieces of legislation," Spencer said. "We'd like to have an affirmative statement that will protect our rights."
Grassroots, Greenbacks And Political Power
Though still in its early stages, DigitalConsumer.org has plans to do more than just organize consumers on the Web. The group hopes to hire a Washington lobbyist and to raise money to compete with the content industry in campaign donations to lawmakers, Spencer said. The television, movie and music industries have given $8.5 million to candidates and parties this election cycle as of March 11, according to the Center for Responsive Politics.
Even without raising a dime, DigitalConsumer.org already has gained the attention of lawmakers. At an April House Energy and Commerce subcommittee hearing on digital rights, two California Democrats, Anna Eshoo and Jane Harman, said the organization's ability to lure activists had caught their eye. Kraus testified that his group, only six weeks old at the time of the hearing, had signed up 33,000 members to blanket the Capitol Hill with faxes outlining their concerns.
"Anyone who can build an organization of 33,000 people in six weeks gets any politician's notice," Harman said.
And grassroots opposition sometimes can trump corporate interests like Hollywood on the Hill, said Peter Jaczi, a professor at American University and founder of the Digital Future Coalition, which represented consumer rights during the DMCA debate.
"What I have learned is that ultimately constituents have more influence than donors," Jaczi said. "And the Hollings-related issues are capable of generating genuine, sustained grassroots [work] on this issue, and if so, the political implications are strong."
As much potential as there is, various fair-use groups have yet to work in concert. So far, groups such as the Consumers Union, ALA and EFF have not built a cohesive lobbying group. Jaczi's Digital Future Coalition was an attempt to pull the fair-use groups together, but Jaczi said it is not clear yet whether there is a desire or a need to create a new fair-use coalition.
Beginning Of A Fair-Use Friendship?
The involvement of the high-tech sector may add some energy to the pursuit of a cohesive lobbying effort. A loose affinity between fair-use activists and the high-tech community has emerged as a result of the technology mandates within Hollings' legislation.
High-tech companies strenuously oppose such mandates. Gateway Computer, for example, started a national campaign highlighting fair-use rights and its opposition to the Hollings bill, while the majority of high-tech associations pulled together to write letters and testify in opposition to the measure this spring.
"We've started to see a convergence between those groups that are worried about the effects of digital-rights management on information users' practices with another group that is worried about the effect of government mandates on technology development," Jaczi said. "And in a sense, that is a gift to those who are generally concerned about fair-use issues."
ALA's Nisbet said she has been approaching people in the tech sector and in other groups to discuss strategy, as have tech groups like the Computer and Communications Industry Association (CCIA). "DigitalConsumer.org is an example of the grassroots that is out there to be tapped into," said Jason Mahler, general counsel at CCIA, "and I think our side does need to formulate some kind of coalition that can tap into that."
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