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5.11.2004
H. R. 107: Digital Rights and Wrongs
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The Copyright Assembly protects the interests of "the copyright industries," a category of stunning diversity. Its members range from the predictable, such as the American Association of Publishers and the Motion Picture Association of America, to the surprising, such as the Ladies Professional Golf Association and the Student Photographic Society. The Directors Guild; ASCAP; the American Federation of Musicians; all belong, so it is a place where suits and artists stand shoulder to shoulder.
Diverse it may be, but the Assembly's membership is united in rage at Representatives Rick Boucher (D-VA) and other Congressmen of both parties who are pushing H.R. 107, innocuously titled the Digital Media Consumers' Rights Act of 2003. The bill hides within its bland language a few lines that would, in the view of the copyright forces, destroy their property by making impossible any effective system of digital rights management.
Hearings are scheduled for May 12, and the fight will be intense, with Jack Valenti of the MPAA leading the charge against Larry Lessig of the Free Culture Movement.
The Digital Millennium Copyright Act (DMCA) makes it illegal to crack an encryption system protecting IP. (A common example is the Content Scrambling System (CSS) used for DVDs.) This outrages the cyberleft, which argues that one should be able to crack systems for the sake of "fair use." If, for example, I have a DVD that plays only on a Windows machine, shouldn't I be allowed to crack the code so that I can play in on a machine using a different operating system? Shouldn't I have a "fair use" right to shift my use of the product in space and time, as per the Supreme Court decision in Sony that time shifting is fair use?
H.R. 107 would codify this and other cracking rights by saying:
"(b) FAIR USE RESTORATION- Section 1201(c) of title 17, United States Code, is amended--
"(1) in paragraph (1), by inserting before the period at the end the following: `and 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'; and
"(2) by adding at the end the following new paragraph:
`(5) It shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work.'."
The objection to this proposal is that passing it would have the practical effect of destroying all property rights in anything that can be digitized. Once the code protecting a creative product is cracked, then it can be disseminated world-wide over the Internet in milliseconds. So even if the cracker is pure of heart, once he sends it to a friend ("but surely it is fair use to share it with my buddy!") the genie is out of the bottle, and there would be no way of putting it back in. Thus the only way to protect creative product is to have a bright line standard of "no cracking," to deter the initial step.
The argument that equipment-shifting requires that cracking be allowed is dubious. If there is a demand, the cheerful greed of the content providers ensures that it will be met. This will not happen for any market that is preempted by hackers, so hacking will become its own self-fulfilling prophecy -- "I must hack because the market will not provide the product because it knows there will be no market because hacking will destroy it."
The assumption that current definitions of fair use should remain constant despite the technological revolution is equally dubious. Consumers would be better off if prices could be differentiated, and calibrated to the intensity of their use of a product. It is the cyberleft that is standing solidly athwart the development of new business models. When it comes down to it, would you as a consumer rather have "fair use rights" as defined by sclerotic government, or a variety of market-available rights that are defined by private companies that are desperate to figure out what you want and need so that they can create it and sell it to you?
Furthermore, the cyberleft knows all this. Its real goal, a skeptic might say, is to destroy the copyright system, not to protect fair use rights. As one such skeptic (me) wrote recently: "The ultimate goal of the [Free Culture] Movement seems to be cut the links between creative work and the market system."
Issues of technological change, fair use, encryption and decoding, and other aspects of the copyright problem present profound challenges to the legal system, challenges that are much too important to be resolved by a few lines of off-hand legislation based in the abstract imaginings of the cyberleft.
The proposal needs a thorough vetting -- and it certainly will get one if the Copyright Assembly has its way. One wonders if Boucher & friends are fully aware of the number and variety of hornets they have stirred up.
posted by James DeLong : 5/11/2004 04:20:21 PM
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