 
By Rik Fairlie The 108th Congress is hitting its stride, and so are initiatives to protect--and imperil--your rights to copy the digital content you own. U.S. Reps. Rick Boucher (D-Va.) and John Doolittle (R-Ca.) have introduced a bill to safeguard fair-use rights of copyrighted material, as well as to ensure that copy-protected CDs are prominently labeled as such. The Digital Media Consumers' Rights Act (H.R. 107) is likely to ram up against bruising opposition from the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA). Microsoft may be a little more gentle, if only because it can spin its own new rights-robbing technology as a more flexible way for record labels to control precisely how CDs are copied--or not. The Digital Media Consumers' Rights Act (DMCRA) targets the 1998 Digital Millennium Copyright Act (DMCA) to preserve fair-use rights for consumers. Fair use has traditionally allowed users to copy legally acquired media--videos, TV shows, music, and other items--for personal, noncommercial purposes. The Napster file-sharing frenzy jolted litigious record-label execs and Hollywood honchos into action, resulting in the DMCA, which tilts the copyright balance toward copyright owners. H.R. 107 addresses two key provisions of the 1998 law: the ban on circumventing any technical copyright-protection measure and the prohibition on the manufacture or sale of technology enabling such circumvention. The problem with the DMCA, Boucher says, is that "in its attempt to prevent unlawful activity, it makes it impossible to carry out lawful activity." In other words, if a content creator employs a copy-protection measure, it's unlawful to bypass that protection. "So even to exercise a fair-use right, such as making an archival copy of a CD, if you have to circumvent the protection, you've committed a crime," he says. "My bill says that if you're bypassing the protection for fair-use rights, you're not guilty of a crime." Nor, he says, would the maker of the device upon which the copyrighted material is played or displayed be a criminal. "And that means the manufacturer would be able to introduce a product with total confidence if he knows it was for noninfringing [of copyright] use," he says. The Electronic Frontier Foundation enthusiastically backs the bill. "The legislation makes it clear that technological protections should not trump the public's traditional fair-use rights under copyright law," says Fred von Lohmann, a senior staff attorney for the watchdog group. "The Boucher-Doolittle bill will go a long way toward restoring in the digital world the traditional balance between the rights of the public and those of copyright owners." The legislation would also direct the Federal Trade Commission to require that copy-protected CDs, a new breed of audio CD that can't be copied and won't play on some PCs, be conspicuously labeled. Boucher says the few copy-protected CDs that have been sold are inadequately identified and have created widespread confusion among consumers. A broad array of tech and electronics companies--including Gateway, Intel, and Philips Electronics--are behind the DMCRA because they believe the DMCA's prohibition against bypassing encryption makes manufacturers jittery about whether new products might fall afoul of the law, Boucher says. One company not supporting H.R. 107 is Microsoft, which recently unveiled its own spin on how to restrict users' rights to copy digital material. The technology, unveiled as Windows Media Data Session Toolkit, would enable record companies to gain iron-fisted control over copying by allowing specific, limited duplication. For instance, you might not be able to burn additional copies of a CD or share files over the Net via file-swapping services. Although swapping MP3s online clearly doesn't fall within the guidelines of fair use, making a copy of a legally purchased CD to spin in your car certainly does. Record labels, not surprisingly, are jazzed about Microsoft's idea. But that doesn't mean it's a sound technology. "As Microsoft's own senior engineers pointed out in [a recent] paper, copy-protection digital-rights-management systems not only are doomed to failure but are also part of the problem, as they drive consumers to unauthorized file-sharing channels," says von Lohmann. "If you buy a CD but find you can't rip MP3 copies to use with your iPod, you're that much more likely to download KaZaa." Despite opposition, Boucher is confident the DMCRA will pass during this session of Congress. As yet, there is no companion bill in the Senate, but the representative says he is talking with a number of senators about introducing legislation. The other side is already rolling out some powerful, noisy guns. "[MPAA president] Jack Valenti has personally started lobbying against the DMCRA on the House side," says von Lohmann. To get involved, contact your legislator and urge him or her to cosponsor H.R. 107. (Unsure who that is? Visit Congress.org.) Then head to the EFF's Action Center, which has delivered more than 15,000 faxes and e-mail messages supporting the DMCRA to Congress. You can bet the copyright holders have already spoken up. Don't let them drown out your voice.
Rik Fairlie is the editor of Computer Shopper magazine. Questions or comments? Let him know!
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