Tomorrow the House Subcommittee on Commerce, Trade, and Consumer Protection is holding a hearing on H.R. 107, The Digital Media Consumers' Rights Act of 2003. The hearing begins at 10:00 AM (Eastern Time) and will be webcast. The witness list has not yet been announced, but Lawrence Lessig has stated that he will be testifying. He has made his written testimony available as a PDF. Other written testimony and transcripts of the session will appear eventually at the hearing website.
It's probably obvious that I'm excited about this hearing but the reason why may not be as obvious for people who don't follow copyright legislation. The Digital Media Consumers' Rights Act (DMCRA) is an attempt to correct some of the imbalances of the Digital Millennium Copyright Act (DMCA).
The DMCA attempts to protect the rights of copyright holders in the face of digital technology, which allows easy, perfect copying of copyrighted materials. Copyright law grants copyright holders exclusive rights to duplicate, reuse, distribute, perform, and display copyrighted works. Copyright law also provides for damages against copyright infringers who violate one of the five exclusive rights of copyright.
Digital copying and distribution reduces the difficulty of duplicating works. It is easier to copy a PDF and email it to a friend than it is to manufacture a physical book and ship it. The DMCA was written to address the fear that it would be harder to identify infringers and collect damages against them given the ease of infringement.
In an attempt to make duplicating digital works more difficult, publishers have taken to adding copy prevention to their works. One example that many people encounter regularly without necessarily realizing it is with DVDs. Commercial DVDs are encrypted with CSS (Content Scrambling System). This isn't a big deal most of the time because DVD players are licensed to decrypt CSS. If all you use DVDs with is a DVD player, you may not even notice the difference.
If you have a DVD drive on your computer, you may be surprised at what you can't do with DVDs. You can't take screenshots of the DVD or make copies of the video or audio from the DVD. This is in obvious contrast to CDs, which allow you to freely copy the music they contain.
There's a reason for this. Computer manufacturers license the right to decrypt CSS, and one of the conditions for the license is that the software can't allow the user to copy the DVD or any part of it.
There is, however, a weakness to CSS. It has been broken. Software that decrypts CSS but that hasn't been properly licensed is available. Since it isn't licensed, it doesn't follow the terms of the licensing and it allows users to make copies of the DVD.
This is the weakness of all copy prevention systems. They will be cracked. The current copy prevention Apple uses with music downloaded from the iTunes Music Store was cracked in less than a day. Once it has been cracked, the copy protection technology is useless for preventing copying.
This is where the DMCA comes in. The DMCA makes it illegal to circumvent copyright protection systems. This is why, although it's not difficult to download unlicensed software to play DVDs, you can't purchase commercial software to play DVDs that is unlicensed. The DMCA prevents the manufacture or sale of anything that breaks copy prevention.
The DMCA exceeds its bounds in several key ways. The first is with public domain works. Public domain works have no copyright holder. Anyone may use a public domain work in any way they wish, including copying, reusing, distributing, performing, or displaying the work. However, the DMCA means that the manufacturer of a public domain work can use copy prevention technology on the work and prevent purchasers from using the work as they wish. The DMCA doesn't protect the work itself, but it does protect the copy prevention, meaning that in practice purchasers may have no more ability to use public domain works than they have with copyrighted works.
The DMCA oversteps its bounds with respect to copyrighted works as well. Copyright law provides for several limitations to the exclusive rights it grants. The two most well known limitations are the first sale right and fair use, but there are others as well. The right of first sale states that after a customer has purchased a copyrighted work, the customer can resell it freely. The copyright holder cannot restrict the sale in any way. Fair use is the use of a copyrighted work for criticism, teaching, research, or parody. The scope of fair use is not clearly defined by law, but fair use is noninfringing use of copyrighted works and it is explicitly protected by law.
The DMCA does not adequately protect the rights of purchasers of works with copy prevention. The public domain, first sale, and fair use grant rights to customers which can be taken away by copy prevention. The DMCA enforces the power of copy prevention by making it illegal to defeat the copy prevention and it doesn't provide for the protection of the customers' rights. In effect, the DMCA takes away rights explicitly granted by copyright law.
Rep. Boucher has written the DMCRA to restore the rights given under copyright law to customers that have been taken away by the DMCA. The bulk of the proposed law is focused on labeling audio CDs. In an attempt to prevent music from being copied, various manufacturers have begun experimenting with copy prevention on audio CDs. This copy prevention can prevent the CDs from being played at all on certain CD players or on computers. The DMCRA would require CDs with copy prevention to be clearly labeled.
The far larger potential impact, even though it makes up one small section of the bill, is a revision to the DMCA. The DMCRA would state that breaking copy prevention for noninfringing uses would no longer be a violation of the DMCA. This would restore the right of fair use.
This bill is expected to receive strong opposition. Major copyright holders have argued to Congress that copyright law needs to be strengthened in order to protect the rights of copyright holders and creators. Generally, they have been successful and copyright law has been repeatedly changed over the last 30 years to increase the rights of copyright holders.
I believe that copyright law requires a balance. Creativity is dependent on reuse of materials from the past and copyright law interferes with that reuse. Furthermore, I don't think copyright law should prevent customers from merely watching a movie or listening to some music, as it can today. The DMCRA would not undo copyright law. It would reduce the current scope of copyright law, restoring rights to creators and consumers that have been improperly taken away.
Please contact your Representatives and tell them that you support the DMCRA because it restores rights to customers. This is particularly important if your Representative is a member of the Subcommittee on Commerce, Trade, and Consumer Protection. The members of the subcommittee are:
- John B. Shadegg, Arizona
- Mary Bono, California
- Darrell Issa, California
- George Radanovich, California
- Diana DeGette, Colorado
- Jim Davis, Florida
- Peter Deutsch, Florida
- Cliff Stearns, Florida
- C.L. "Butch" Otter, Idaho
- Bobby L. Rush, Illinois
- Jan Schakowsky, Illinois
- John Shimkus, Illinois
- Ed Whitfield, Kentucky
- John D. Dingell, Michigan
- Bart Stupak, Michigan
- Fred Upton, Michigan
- Karen McCarthy, Missouri
- Lee Terry, Nebraska
- Charles F. Bass, New Hampshire
- Mike Ferguson, New Jersey
- Edolphus Towns, New York
- Sherrod Brown, Ohio
- Ted Strickland, Ohio
- John Sullivan, Oklahoma
- Joseph R. Pitts, Pennsylvania
- Joe Barton, Texas
- Charles A. Gonzalez, Texas
- Gene Green, Texas
- Barbara Cubin, Wyoming