 | |
| |
TechnologyDaily Mobile
Unlocking The Digital World
by Sarah Lai Stirland
Should lawmakers outlaw technologies that enable media piracy, or should they focus on the activity of piracy itself? Those are questions that have dogged the media world for decades -- and ones that Congress is pondering again.
But in the digital environment, the stakes are higher. Lawmakers must consider what kind of world they would create by continuing to let media companies lock their digital content even as the companies develop technologies to control consumers' media consumption. Conversely, they must consider what impact the easy availability of lock-picking technology could have on the market for digital content and entertainment. Once digital content is unlocked and on the Internet, millions of people can access infinite copies.
That is essentially the question before members of the House Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection as they consider a bill, H.R. 107, that would require the labeling of copy-protected CDs. But the provision causing the most panic in the entertainment industry would amend the Digital Millennium Copyright Act (DMCA) to specify that it would not be illegal to break digital locks on copy-protected products, or to make and sell lock-picking technology for uses that do not violate copyright law.
Who Controls The Keys?
The legislation, the focus of an all-day subcommittee hearing in early May, received the support of full committee Chairman Joe Barton, R-Texas. A spokeswoman for Barton said the committee hopes to debate the measure by the end of the month.
The bill, authored by Virginia Democrat Rick Boucher, has 19 sponsors and several supporters. They include: the technology companies Gateway, Intel, Philips Consumer Electronics and Sun Microsystems; groups such as the Consumer Electronics Association, Consumers Union, Electronic Frontier Foundation and Public Knowledge; and the telecommunications companies BellSouth, Qwest Communications and Verizon Communications.
The opponents include the Business Software Alliance, Entertainment Software Association, Motion Picture Association of America and Recording Industry Association of America.
The bill is the latest effort by a section of the technology industry and public-interest community to alter DMCA provisions that make it illegal to bypass copy-protection technology. Copyright scholars have long charged that the language is too broad and conflicts with the fundamental mission of any administration, which is to promote commerce and innovation.
Scholars and activists specifically have pinpointed as bad law the provision that bans, without regard to intent, devices that can pick the locks on digital content. They say the provision protects copyright holders at the expense of new markets that could be created by innovative companies, among other things.
Activists charge that companies have abused the provision to stifle competition and engage in practices that have little to do with copyright protection. They also worry about how the provision, when used in conjunction with systems that manage digital rights, could lead to an anti-competitive, permission-based culture of invention that they say would eliminate the environment that lets people freely tinker with technology within the bounds of the law.
The Latest Push For 'Fair Use'
In a paper on the role that the legal concept of "fair use" of copyrighted works plays in technological innovation, Fred von Lohmann, a senior staff attorney for the Electronic Frontier Foundation, argues that the legal ambiguity of the concept has powered innovation and has led courts to define fair use as new technologies emerge.
"Unless the public has the opportunity to experiment with new technologies, courts will not have the opportunity to test them against the fair-use doctrine," he wrote.
Legal observers also argue that the law has created a hostile, litigious climate of legal uncertainty. "The mere potentiality for infringement will suffice to confer rich rewards on a successful plaintiff," Pamela Samuelson, a law professor at the University of California at Berkeley, wrote in a 1999 paper on the anti-circumvention provisions of the DMCA.
In the paper, she noted that the maker of a proprietary game console in a lawsuit at the time used the DMCA provisions to sue a company that had created software to let users play the games on a different platform. "The plaintiff did not allege and need not prove any actual illicit copying by users of the defendant's emulation software," she noted. Since then, other similar cases have been brought in the courts.
For their part, supporters of the DMCA argue that Boucher's bill would legalize technology hacking to infringe upon copyrights and that the nation needs the law to deter widespread piracy.
At a symposium on fair use last year, Alec French, legislative counsel to Californian Howard Berman, the ranking Democrat on the House Judiciary Courts, the Internet and Intellectual Property Subcommittee, argued that the DMCA is working well and that the strategy of litigation against lock-picking technologies is a success. He said the code for decrypting digital videodiscs is not more "consumer friendly" because the DMCA is vigorously enforced.
In a Friday telephone interview, French added that none of the complaints about the DMCA have been confirmed in reviews by the Copyright Office every three years.
Changing The Balance Of Copyright Law
Regardless of what happens to Boucher's bill in the Energy and Commerce Committee, observers wonder how much traction it has because key members of House Judiciary oppose it and claim jurisdiction over the copyright issues addressed in the measure. "It would destroy the careful balance in copyright law between so-called consumers' 'rights' and intellectual property rights as struck by the House Judiciary Committee," said Texas Republican Lamar Smith, chairman of the Courts, the Internet and Intellectual Property Subcommittee.
But Boucher remains steadfast in his optimism about the bill. He said in an interview that Energy and Commerce has primary jurisdiction, and a procedural rule prevents another committee with jurisdiction from killing the legislation by holding it. Once the bill reaches the House floor, it will find a receptive audience, he said.
"The members of the House at large would probably adopt a more balanced view between the rights of the average user and the IP community," he said.
Gigi Sohn, president and co-founder of Public Knowledge, added that besides the all-important support of Barton, the bill has the backing of a group known as the Personal Technology Freedom Coalition, whose members she said "are starting to visit Hill offices in droves and are very fired up to get this bill moving." The group is made up of firms such as Intel, Philips Consumer Electronics, Sun Microsystems, 321 Studios and Red Hat.
"There is a sense of many in Congress that after a decade of the content industry getting just about everything they want on their copyright wish list, it is time for the balance to tip back to the rights of citizens and consumers," Sohn said.
NEW FEATURE
-Advertisement-
-Advertisement-
-Advertisement-
