Interview with a congressman--part one
When a regular reader of my column e-mailed me to say that he could set up an interview with Rep. Rick Boucher (D-Virginia), I admit that I was a bit skeptical. After all, this is the Internet, where people e-mail you with seemingly impossible opportunities everyday. But soon enough, I was on the phone for half an hour with Rep. Boucher, who called fresh from a vote on the House floor to talk with me about a variety of pressing online music issues--most specifically, our right to the fair use of the content that we buy. This constitutional right, which is closely related to free speech, has already been severely damaged by the DMCA (Digital Millennium Copyright Act) and could be obliterated by a new bill introduced by Sen. Ernest "Fritz" Hollings (D-South Carolina). Boucher thinks that you should be able to burn mix CDs, but due to the lobbying efforts by the record industry in Washington, many others in Congress don't see things in the same proconsumer light. Here's what Rep. Boucher had to say in this first of two installments.

MP3 Insider: So I really liked your article on CNET News.com, and it seems like we agree with each other on a lot of these issues.

Rep. Boucher: Yeah.

M: I'm wondering, just to start things off, do you use a computer to download or stream music?

I defend peoples' right to [download music from the Web] in a lawful manner, but I have not undertaken that practice myself.

B: I actually use a computer a lot. I have three computers that I use on a regular basis--one is on my desk top in my Washington office, another is at home, and I have my laptop that I use when I'm traveling. However, I'm not in the habit of downloading music from the Web. I defend peoples' right to do that in a lawful manner, but I have not undertaken that practice myself.

M: OK. So how long would you say that you've been online?

B: I have been online since the early '90s. The first legislation that I produced relating to the Internet was a bill to overturn a restriction inside of the law that prohibited the Internet backbone from being used for anything other than research and scientific and educational communication.

M: Interesting.

B: The effect of that restriction, which was known as the acceptable-use policy, prohibited electronic commerce, and the first Internet-related legislation that I sponsored, which was in 1992, repealed the acceptable-use policy and thereby enabled the Internet to be used for electronic commerce. So I have been involved in Internet-related policy for approximately one decade, and I have been using the Internet myself for almost that period of time.

M: Excellent, so you definitely know the area fairly well.

B: Yes.

M: OK, so now into some more specifics. You've gone on the record as a vocal opponent of the DMCA, the anticircumvention clause especially, and I remember Orrin Hatch, who's a Republican, making statements in support of file sharing back during the Napster hearing. I'm wondering if you could tell me, how do you think the two parties line up overall, in terms of consumers' digital rights in the Internet age?

B: Well, I think what you're seeing is that among the handful of members of Congress who are involved in intellectual-property policy today, House and Senate, you are seeing those members basically divide into two camps. One of those camps staunchly defends all of the provisions of the DMCA, staunchly defends the 20-year extension of copyright terms, staunchly defends the content community's copyright interests, against all efforts to enhance the rights of the users of intellectual property--that's one camp. The other camp is the other side of the equation, and that other camp is members who believe that the historical balance between the rights of copyright owners and the rights of the users of copyrighted material has been dramatically altered in favor of the owners of copyrights at the expense of the rights of the users of copyrighted material.

M: Right.

B: I am in that camp [the second one].

M: Good.

B: I think that the balance needs to be restored, and I would note that in the camp in which I am in, one finds libraries, universities, the Internet industry, the manufacturers of digital media, and consumers.

M: Speaking of the consumers, I know the MPAA and RIAA are fairly well organized in terms of their efforts. Are there any kind of consumer-advocacy groups getting involved? I mean, I sometimes get the feeling that people--consumers--don't know what's at stake here, really.

[The MPAA and RIAA], by virtue of their long-standing knowledge of Congress and relationships with many key members of Congress, would appear to have the upper hand.

B: Well I think that's true. I think this debate is just beginning, and in the early stages of any debate, oftentimes the external stakeholders appear to be somewhat lopsided in terms of their ability to influence the process, and I would grant you that at the present time, the Motion Picture Association [of America] and the Recording Industry Association of America, by virtue of their long-standing knowledge of Congress and relationships with many key members of Congress, would appear to have the upper hand. On the other hand, I think a lot has changed since 1998, when the DMCA was passed by Congress. We now have the formation of a number of groups that are dedicated to user rights. I would include among those the Digital Media Association (DiMA), which represents Webcasters. They were not a part of the debate in 1998. I would also include the Electronic Frontier Foundation (EFF), the Center for--what is it called, Electronic Democracy, something along that line? All of these groups have come to the scene since 1998 and are now here, expressing the concerns of people who are users of intellectual property.

M: Right.

B: I think there's also a growing body of scholarship that suggests that what I said previously is true, and that is that the balance, which we always respected in our law, between the rights of intellectual-property owners and the rights of the users of that property has now been dramatically shifted, and that the balance now lies on the side of the owners of copyright, and that that shift has occurred at the expense of the rights of copyright owners. It has certainly occurred at the expense of the fair-use rights, which underpins our right to speak freely in society. That growing body of scholarship includes a number of prominent law professors and writers on the West Coast.

M: Are you familiar with Lawrence Lessig and his work [Code & Other Laws of Cyberspace and The Future of Ideas ]?

B: Yes, I am. I've read his work, and I applaud it. I think he's exactly on target.

M: Right. I get letters from people all the time, I mean they read my column when I tell them what these laws say they can't do, and I think more people who have CD burners now, and the average person is starting to understand this a little more, maybe, we'll see...

Millions of Americans have now become accustomed to using their CD burners at home in order to perform a completely lawful act.

B: Well I think we will, and you're absolutely right in saying that the attempt by the labels to introduce copy-protected CDs into the U.S. market is going to have a profound effect on this debate. Millions of Americans have now become accustomed to using their CD burners at home in order to perform a completely lawful act. And that is to take music that they have purchased at the store and rearrange the tracks on those CDs on a CD they've compiled themselves, so that they have on that self-manufactured CD, exactly the music they want to hear in the order in which they want to hear it. And that is a classic exercise of Constitutionally protected fair-use rights.

M: Right.

B: And to the extent now that people are frustrated in being able to perform that legal act, I think you're going to see millions of Americans complain to their members of Congress that something is amiss when they go to the store, buy a CD, and then take it home and find that they can't space-shift from that CD onto another CD they want to create for their own personal use.

M: Right, do you think the Sony vs. Betamax case is going to stand up as sort of a precedent that reinforces our right to fair use?