[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1621 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                S. 1621

To provide for consumer, educational institution, and library awareness 
 about digital rights management technologies included in the digital 
         media products they purchase, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 16, 2003

 Mr. Brownback introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To provide for consumer, educational institution, and library awareness 
 about digital rights management technologies included in the digital 
         media products they purchase, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Consumers, Schools, and Libraries 
Digital Rights Management Awareness Act of 2003''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) It is not in the interest of our Nation's economy, 
        marketplace innovation, nor consumer or educational community 
        welfare for an agency of the Federal Government to mandate the 
        inclusion of access or redistribution control technologies used 
        with digital media products into consumer electronics products, 
        computer products, or telecommunications and advanced services 
        network facilities and services, except pursuant to a grant of 
        specific and clear authority from Congress to assure a result 
        in its regulations, and when the mandate is derived from 
        voluntary private-sector efforts that protect the legal, 
        reasonable, and customary practices of end-users.
            (2) The limited introduction into commerce of access 
        controlled compact discs has caused some consumer, educational 
        institution, and library confusion and inconvenience, and has 
        placed increased burdens on retailers, consumer electronics 
        manufacturers, and personal computer manufacturers responding 
        to consumer, educational institution, and library complaints.
            (3) The private and public sectors should work together to 
        prevent future consumer, educational institution, library, and 
        industry confusion and inconvenience as legitimate access and 
        redistribution control technologies become increasingly 
        prevalent in the marketplace.
            (4) The private sector should make every effort, in a 
        voluntary process, to provide for consumer, educational 
        institution, and library awareness and satisfaction as access 
        and redistribution control technology are increasingly deployed 
        in the marketplace.
            (5) The Federal Trade Commission, in the absence of 
        successful private sector efforts, should ensure that 
        consumers, educational institutions, and libraries are provided 
        with adequate information with respect to the existence of 
        access and redistribution control technologies in the digital 
        media products they purchase, and how such technologies may 
        implicate their ability to use such products.
            (6) It is not in the interests of consumer welfare, 
        privacy, and safety, or for the continued development of the 
        Internet as a communications and economic resource, for the 
        manufacturers of digital media products or their 
        representatives to be permitted to require Internet access 
        service providers merely providing subscribers with transport 
        for electronic communications to disclose a subscriber's 
        personal information, absent due process and independent of the 
        judicial scrutiny required to ensure that such requests are 
        legitimate.
            (7) The Federal Trade Commission should ensure that 
        consumers' welfare, privacy, and safety are protected in 
        regards to requests by manufacturers of digital media products 
        or their representatives for Internet service provider 
        disclosure of subscribers' personally identifiable information 
        outside of the judicial process.
            (8) It is not in the interests of our Nation's economy, 
        marketplace innovation, nor consumer, educational institution, 
        and library welfare to permit the advent of access or 
        redistribution control technologies to limit the existence of 
        legitimate secondary markets for digital media products, a 
        traditional form of commerce that is founded in our Nation's 
        economic traditions, provides critical resources for our 
        Nation's educational institutions and libraries, and is 
        otherwise consistent with applicable law.

SEC. 3. PROHIBITION ON FCC TECHNOLOGY MANDATES.

    (a) Sense of the Congress.--It is the sense of the Congress that--
            (1) a successful transition to digital television will 
        occur based on the mutual cooperation of all stakeholders, and 
        no one stakeholder's property interests outweigh another's 
        interests;
            (2) the transition to digital television will be successful 
        to the degree it meets consumers' expectations based on the 
        ways they have come to expect to be able to receive and use 
        over-the-air television in the privacy of their own homes and 
        otherwise;
            (3) digital convergence provides new tools for industry to 
        offer innovative and varied products compared to the 
        traditional analog marketplace, and it also provides consumers 
        with innovative and varied means of using digital content. In 
        this respect, interoperability between digital television 
        products and digital cable systems remains an important 
        objective;
            (4) a successful transition to digital television will 
        maintain this important balance of interests; and
            (5) suggestions that consumers do not have certain 
        expectations in the digital marketplace simply because they 
        have never had access to a particular digital capability, or 
        the expectation of using or relying on such a capability, are 
        not dispositive of reasonable and customary consumer access and 
        use practices.
    (b) Prohibition on Technology Mandates.--Except as specifically 
authorized by Congress the Federal Communications Commission may not 
require a person manufacturing, importing into, offering for sale, 
license or distribution in, or affecting, interstate commerce in the 
United States a device, machine, or process that is designed, 
manufactured, marketed for the purpose of, or that is capable of 
rendering, processing, transmitting, receiving or reproducing a digital 
media product--
            (1) to incorporate access control technology, or the 
        ability to respond to such technology, into the design of such 
        a device, machine, or process; or
            (2) to incorporate redistribution control technology, or 
        the ability to respond to such technology, into the design of 
        such a device, machine, or process.
    (c) Effect on Pending FCC Rulemaking Proceedings.--
            (1) Nothing herein shall prohibit or limit the Commission 
        from issuing the regulations proposed for adoption in the 
        ``cable plug and play'' proceeding in CS Docket No. 97-80 and 
        PP Docket No. 00-67.
            (2) If the Commission determines that it has the authority 
        to issue regulations in MB Docket No. 02-230, it shall not be 
        barred by subsection (b) of this section from issuing such 
        regulations, provided, however, that such regulations shall--
                    (A) preserve reasonable and customary consumer, 
                educational institution, and library access and use 
                practices;
                    (B) not include, directly or indirectly, any 
                requirement that a device, machine, or process 
                designed, manufactured, marketed for the purpose of, or 
                that is capable of rendering, processing, transmitting, 
                receiving or reproducing a digital media product, be 
                manufactured using any particular redistribution 
                control technology or technologies, but only may 
                provide for establishment of objective standards to 
                achieve a functional requirement of preventing illegal 
                redistribution of digital terrestrial television 
                broadcast programming to the public over the Internet; 
                and
                    (C) provide for manufacturer self-certification, to 
                be enforced exclusively by the Commission pursuant to 
                its existing enforcement authority, that a 
                redistribution control technology meets the 
                requirements in subparagraphs (A) and (B) of this 
                subsection and does not interfere with unrelated 
                distribution of content over the Internet.

SEC. 4. CONSUMER, EDUCATIONAL INSTITUTION, AND LIBRARY AWARENESS.

    (a) Consumer, Educational Institution, and Library Digital Rights 
Management Awareness Advisory Committee.--The Federal Trade Commission 
shall, as soon as practicable after the date of enactment of this Act, 
establish an advisory committee for the purpose of informing the 
Commission about the ways in which access control technology and 
redistribution control technology may affect consumer, educational 
institution, and library use of digital media products based on their 
legal and customary uses of such products, and how consumer, 
educational institution, and library awareness about the existence of 
such technologies in the digital media products they purchase or 
otherwise come to legally own may be achieved.
    (b) Advisory Committee Requirements.--In establishing an advisory 
committee for purposes of subsection (a) of this section, the 
Commission shall--
            (1) ensure that it includes representatives of radio and 
        television broadcasters, television programming producers, 
        producers of motion pictures, producers of sound recordings, 
        publishers of literary works, producers of video games, cable 
        operators, satellite operators, consumer electronics 
        manufacturers, computer manufacturers, any other appropriate 
        manufacturers of electronic devices capable of utilizing 
        digital media products, telecommunications service providers, 
        advanced service providers, Internet service providers, 
        consumer interest groups, representatives of educational 
        institutions, representatives of libraries, and other 
        interested individuals from the private sector, and is fairly 
balanced in terms of political affiliation, the points of view 
represented, and the functions to be performed by the committee;
            (2) provide to the committee such staff and resources as 
        may be necessary to permit it to perform its functions 
        efficiently and promptly; and
            (3) require the committee to submit a final report, 
        approved by a majority of members, of its recommendations 
        within 1 year after the date of the appointment of the initial 
        members.
    (c) FTC Notice and Labeling.--Except as provided in subsection 
(d)--
            (1) no person shall offer for sale, license, or use by a 
        consumer, educational institution, or a library an access 
        controlled digital media product or a redistribution controlled 
        digital media product, unless that person has provided clear 
        and conspicuous notice or a label on the product, at the point 
        of sale or distribution to such consumer, educational 
        institution or library as prescribed by the Federal Trade 
        Commission, such that the notice or label identifies any 
        restrictions the access control technology or redistribution 
        control technology used in or with that digital media product 
        is intended or reasonably could be foreseen to have on the 
        consumers', educational institutions', or libraries' use of the 
        product; and
            (2) this subsection shall not apply to a distributor or 
        vendor of a digital media product unless such distributor or 
        vendor has actual knowledge that the product contains or is 
        restricted by access control technology or redistribution 
        control technology and that the notice or label described in 
        this subsection is not visible to the consumer, educational 
        institution, or library at the point of distribution or 
        transmission.
    (d) Applicability and Effective Date.--Subsection (c) shall take 
effect 1 year after the date of enactment of this Act unless the 
Commission determines, in consultation with the advisory committee 
created in subsection (b) of this section, that manufacturers of 
digital media products have, by such date--
            (1) established voluntary rules for notice and labeling of 
        access controlled or redistribution controlled digital media 
        products, including when both access control technology and 
        redistribution control technology are used in or with digital 
        media products, designed to create consumer, educational 
        institution, and library awareness about the ways in which 
        access control technology or redistribution control technology 
        will affect their legal, expected, and customary uses of 
        digital media products; and
            (2) agreed voluntarily to implement the rules for notice 
        and labeling of access controlled digital media products or 
        redistribution controlled digital media products, including 
        when both access control technology and redistribution control 
        technology are used in or with digital media products.

SEC. 5. CONSUMER PRIVACY.

    (a) In General.--Notwithstanding any other provision of law, an 
Internet access service may not be compelled to make available to a 
manufacturer of a digital media product or its representative the 
identity or personal information of a subscriber or user of its service 
for use in enforcing the manufacturer's rights relating to use of such 
product on the basis of a subpoena or order issued at the request of 
the manufacturer or its representative except under a valid subpoena or 
court order issued at the request of the manufacturer or its 
representative in a pending civil lawsuit or as otherwise expressly 
authorized under the Federal Rules of Civil Procedure or the civil 
procedure rules of a State.
    (b) Subsection (a) shall not apply to requests for personal 
information authorized by another provision of law relating to 
allegedly unlawful use of a digital media product residing, and not 
merely stored for a temporary or transient period, on the system or 
network of the Internet access service.

SEC. 6. SECONDARY MARKETS FOR USED DIGITAL MEDIA PRODUCTS.

    (a) Consumer Secondary Markets.--The lawful owner of a digital 
media product may transmit a copy of that product by means of a 
transmission to a single recipient as long as the technology used by 
that person to transmit the copy automatically deletes the digital 
media product contemporaneously with transmitting the copy.
    (b) Secondary Markets for Charitable Donations to Educational 
Institutions and Libraries.--A person manufacturing, importing into, or 
offering for sale in, or affecting, interstate commerce in the United 
States a digital media product may not incorporate, impose, or attempt 
to impose any access control technology or redistribution control 
technology used in or with a digital media product that prevents a 
consumer from donating digital media products they own to educational 
institutions or libraries, subject to subsection (a).
    (c) No Disabling Technology.--A person manufacturing, importing 
into, or offering for sale in, or affecting, interstate commerce in the 
United States a digital media product may not incorporate, impose, or 
attempt to impose any access control technology or redistribution 
control technology used in or with a digital media product that limits 
consumer resale of a digital media product described in subsection (a) 
or charitable donations described in subsection (b) to specific venues 
or distribution channels.

SEC. 7. REPORT TO CONGRESS.

    Not later than 2 years after the date of enactment of this Act, the 
Federal Trade Commission shall submit to Congress a report containing 
the following information:
            (1) The extent to which access controlled digital media 
        products and redistribution controlled digital media products 
        have entered the market over the preceding 2 years.
            (2) The extent to which such digital media products allow 
        consumers, educational institutions, and libraries to engage in 
        all lawful uses of the product, and to which the Commission has 
        received complaints from consumers, educational institutions, 
        and libraries about the implementation of return policies for 
        consumers, schools, and libraries who find that an access 
        controlled digital media product or a redistribution controlled 
        digital media product does not operate properly in a device 
        capable of utilizing the product, or cannot be transmitted 
        lawfully over the Internet.
            (3) The extent to which manufacturers and retailers have 
        been burdened by consumer, educational institutions, and 
        library returns of devices unable to play or otherwise utilize 
        access controlled digital media products or redistribution 
        controlled digital media products.
            (4) The number of enforcement actions taken by the 
        Commission under this Act.
            (5) The number of convictions or settlements achieved as a 
        result of those enforcement actions.
            (6) The number of requests Internet service providers have 
        received from manufacturers of digital media products or their 
        representatives seeking disclosure of subscribers' personal 
        information, and the number of electronic requests Internet 
        Service Providers have received from manufacturers of digital 
        media products or their representatives requesting that a 
        subscriber be disconnected from their service outside of any 
        judicial process.
            (7) Legislative or other requirements the Commission 
        recommends in creating an office within the Commission to 
        receive, verify, and process requests from manufacturers of 
        digital media companies or their representatives to obtain the 
        personal information of a subscriber to an Internet access 
        service they legitimately suspect of misusing their property.
            (8) An analysis of the ways consumers, educational 
        institutions, and libraries commonly expect to be able to use 
        digital media products, whether including access control 
        technology or redistribution control technology or otherwise, 
        when they purchase, legally own, or pay to use such products.
            (9) Any proposed changes to this Act the Commission 
        believes would enhance enforcement, eliminate consumer, 
        educational institution, and library confusion, or otherwise 
        address concerns raised by end-users with the Commission under 
        this Act.

SEC. 8. ENFORCEMENT.

    (a) Enforcement by Federal Trade Commission.--Except with regard to 
section 3, this Act shall be enforced by the Federal Trade Commission.
    (b) Violation is Unfair or Deceptive Act or Practice.--The 
violation of any provision is an unfair or deceptive act or practice 
proscribed under section 18(a)(1)(B) of the Federal Trade Commission 
Act (15 U.S.C. 57a(a)(1)(B)).
    (c) Actions by the Commission.--The Commission shall prevent any 
person from violating sections 4, 5, or 6 of this Act in the same 
manner, by the same means, and with the same jurisdiction, powers, and 
duties as though all applicable terms and provisions of the Federal 
Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and 
made a part of this Act. Any entity that violates any provision of 
sections 4, 5, or 6 is subject to the penalties and entitled to the 
privileges and immunities provided in the Federal Trade Commission Act 
in the same manner as if all applicable terms and provisions of the 
Federal Trade Commission Act were incorporated into and made a part of 
those sections.
    (d) 1 Year Window for Compliance.--The Commission may not, less 
than 1 year after the date of enactment of this section, initiate an 
enforcement action under this section for a violation of section 4.

SEC. 9. DEFINITIONS.

    For the purposes of this Act:
            (1) Access controlled digital media product.--The term 
        ``access controlled digital media product'' means a digital 
        media product, as defined in this section, to which an access 
        control technology has been applied.
            (2) Access control technology.--The term ``access control 
        technology'' means a technology or process that controls or 
        inhibits the use, reproduction, display, transmission or 
        resale, or transfer of control of a license to use, of a 
        digital media product.
            (3) Digital media product.--The term ``digital media 
        product'' means--
                    (A) a literary work;
                    (B) a pictorial and graphic work;
                    (C) a motion picture or other audiovisual work;
                    (D) a sound recording; or
                    (E) a musical work, including accompanying words
        that is distributed, broadcast, transmitted, performed, 
        intended for sale, or licensed on nonnegotiable terms, to the 
        general public, in digital form, either electronically or fixed 
        in a physical medium.
            (4) Functional requirement.--The term ``functional 
        requirement'' means any rule or regulation enacted by the 
        Federal Communications Commission that requires a device, 
        machine, or process designed, manufactured, marketed for the 
        purpose of, or that is capable of rendering, processing, 
        transmitting, receiving or reproducing a digital media product 
        to be able to perform certain functions or include certain 
        generic capabilities, independent of any requirement that 
        specific technologies be incorporated to meet the functional 
        requirement.
            (5) Internet.--The term ``Internet'' has the meaning given 
        that term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
            (6) Internet access service.--The term ``Internet access 
        service'' has the same meaning given that term in section 
        231(e)(4) of the Communications Act of 1934 (47 U.S.C. 
        231(e)(4)).
            (7) Manufacturer.--The term ``manufacturer of a digital 
        media product'' means any person owning any right in the 
        digital media product.
            (8) Personal information.--The term ``personal 
        information'' has the same meaning given that term in section 
        1301(8) of the Children's Online Privacy Protection Act of 1998 
        (15 U.S.C. 6501(8)), including any other information about an 
        individual, and including information that an Internet access 
        service collects and combines with an identifier described in 
        subparagraphs (A) through (F) of that section.
            (8) Redistribution controlled digital media product.--The 
        term ``redistribution controlled digital media product'' means 
        a digital media product, as defined in this section, to which a 
        redistribution control technology has been applied.
            (9) Redistribution control technology.--The term 
        ``redistribution control technology'' means a technology or 
        process that controls or inhibits the transmission of a digital 
        media product over the Internet following its initial receipt 
        by a member of the public, without regard to whether such 
        transmission is for the purpose of use, reproduction, 
        performance, resale, or transfer of a license to use, the 
        digital media product.
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