[Congressional Record Volume 144, Number 25 (Wednesday, March 11, 1998)]
[Senate]
[Pages S1770-S1771]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    ADVOCACY OF THE DIGITAL COPYRIGHT CLARIFICATION AND TECHNOLOGY 
                         EDUCATION ACT OF 1997

  Mr. ASHCROFT. Madam President, I rise today to talk about the role of 
government in the technology sector. Two things can be predicted with 
confidence about congressional meddling in this sector of the economy. 
First, legislation will be obsolete on the day it is passed. Second, it 
will hurt consumers, students, teachers, workers, shareholders, and the 
economy. if Congress had helped set up the automobile industry, there 
still might be a livery stable in every town, and buggy whip factories 
in large cities. America's dynamic, world-leading computer industry 
must be kept free of regulation by slow-moving federal bureaucrats who 
cannot possibly understand or keep pace with the most dynamic sector of 
the economy.
  Taken together, these developments highlight the need for Congress to 
step back and draft with care the necessary legislation to extend 
copyright protections to those who develop content for the digital age, 
instead of blindly racing ahead to enact a Clinton Administration 
proposal supported by major Hollywood interests.
  Consider the consequences. Last year, Americans purchased 11 million 
PCs and 16.8 million VCRs. This year, another 12.6 million PCs and 16.6 
million VCRs are expected to be purchased in the United States. These 
devices enjoy great popularity. At least one VCR is found in 90 million 
homes and at least one PC is found in 42 million homes, specifically 
because of the convenience, entertainment and efficiency they bring. 
They are popular precisely because they are useful and technologically 
advanced. Nonetheless, a House subcommittee specifically rejected an 
amendment that would have

[[Page S1771]]

assured consumers access to the next generation of these products.
  This isn't the first time someone has tried to stop the advance of 
new technology. In the mid 1970s, for example, a lawsuit was filed in 
an effort to block the introduction of the Betamax video recorder. At 
that time, representatives of Hollywood declared that the VCR would 
destroy their business. They could not have been more wrong. Last year 
video tape rentals accounted for a $16 billion portion of the 
entertainment market. Indeed, people in the movie industry have stated 
that video sales often make a movie profitable, and some movies are 
produced exclusively for the home rental market. The movie industry has 
not learned from history. The same doomsayers are at it again, decrying 
the lawful use of products by consumers. Their rhetoric has been 
updated for the digital age, but their message remains the same.
  This is an important debate that is currently taking place in the 
Congress and that is the discussion regarding how best to update the 
copyright laws for the digital age. In particular, I want to bring to 
the attention of my colleagues two significant developments that 
occurred in the last weeks, and to urge you to join as cosponsors of S. 
1146, the Digital Copyright Clarification and Technology Education Act 
of 1997.
  In order to help focus the debate on the best way to update the 
copyright laws for the digital era, I introduced S. 1146 in September. 
This legislation is a comprehensive effort to address three broad areas 
of critical importance to the future of the Internet: (1) the scope of 
copyright liability for on-line and Internet service providers; (2) the 
use of computers by teachers, librarians, and students to foster 
distance learning opportunities and to promote the preservation of 
important historical works and resources; and (3) the proper 
implementation of two international copyright treaties. Subsequently, 
Representatives Rick Boucher and Tom Campbell introduced a similar 
comprehensive bill in the House (H.R. 3048) to foster the growth of the 
Internet for the benefit of everyone in society.
  Two important developments took place in the past two weeks that 
underscore the importance of a comprehensive approach to updating the 
copyright laws. First, on February 25th, 40 distinguished professors of 
intellectual property law and technology law said in a letter to the 
Chairmen of the Senate and House Judiciary Committees that they believe 
these two bills, S. 1146 and H.R. 3048, ``taken together, would bring 
U.S. law into compliance with the WIPO treaties while preserving the 
principle of balance which is at the heart of the American copyright 
tradition.'' They went on to say: ``At this crucial moment in the 
history of American intellectual property law, it is important that 
Congress do neither too much nor too little to bring copyright law into 
the digital era. In our view, the Ashcroft-Boucher-Campbell bills get 
the balance right.''
  Second, just one day later, in a major blow to consumers and the 
high-tech community, a House subcommittee voted out legislation that 
would make it illegal to produce or even possess future generations of 
VCRs and personal computers. Faced squarely with the question of 
whether the next generation of products found in virtually every home 
in America should be deemed unlawful ``circumvention'' devices, a 
majority of the subcommittee voted for the interests of copyright 
owners over the interests of consumers and the computer companies that 
have done so much to make our country the technology leader of the 
world.
  The Subcommittee vote endangers both the liberties that consumers now 
enjoy and the vitality of the technology industry, which has been the 
premiere engine for growth in the United States. This approach also 
suggests the tendency of Congress to ``fix first, ask questions 
later.'' The bill demonstrates the dangers of fixing what we do not 
understand. Now is the time to draw a bright line against federal 
regulation of the computer industry. Washington must not start down the 
road of dreaming up regulations to fix problems that may or may not 
exist.
  I think it useful to recall what the Supreme Court had to say in 
ruling for consumers and against two movie studios in that case:
  ``One may search the Copyright Act in vain for any sign that the 
elected representatives of the millions of people who watch television 
every day have made it unlawful to copy a program for later viewing at 
home, or have enacted a flat prohibition against the sale of machines 
that make such copying possible.''
  As someone who filed an independent brief in the Supreme Court as the 
Missouri Attorney General in support of the right of consumers to buy 
that first generation of VCRs, I want to reassure consumers across the 
country that I will fight against legislation that would ban the next, 
exciting generation of technology.
  What kind of a bill should we consider? One that looks to the future. 
Above all, one that maintains the balance the professors of 
intellectual property and technology law have reminded us is at the 
core of our great copyright tradition and protection of property. The 
House subcommittee bill would make it all but impossible for someone to 
make a fair use of a copyrighted work, even though a fair use exception 
has been a fixture of copyright law from the beginning. What is more, 
the bill would actually make it illegal to make a copy of a portion of 
a protected work for fair use in certain circumstances. This is not 
balance. This is a blank check payable to Hollywood.
  Unlike the bill starting to move through the House, S. 1146 will spur 
technological innovation in small entrepreneur workshops and clean-room 
factories; it will create new educational opportunities in brick 
schoolhouses and family living rooms; and it will help preserve 
deteriorating manuscripts in your local library and the nation's 
largest universities.
  The Digital Copyright Clarification and Technology Education Act will 
encourage the use of computers and other new high-tech products to 
foster educational opportunities for everyone from children to senior 
citizens. Twenty-two years ago, Congress recognized that television 
could connect teachers in one part of town to students in another part 
of town. Today, technology has moved forward and has provided this 
country with fantastic new opportunities. We need to update the law so 
that schools may use computers to bring the world into the classroom 
and the classroom into the home.
  This legislation will ensure librarians and archivists may use the 
latest high-tech equipment to preserve deteriorating books, 
manuscripts, and works of art for future genrations to enjoy. New 
digital technology can enhance the educational experience and preserve 
our shared culture and history far into the future. Library patrons and 
students shouldn't be consigned to outmoded equipment when exciting new 
digital products are on the horizon.
  S. 1146 will guarantee that the centuries-old ``fair use'' rights of 
students, library patrons, scholars, and consumers will continue to be 
recognized in the new digital era of the Internet.
  In addition the legislation will encourage personal computer 
manufacturers and software developers to create new products which 
promote the productivity of Americans across the country. Innovators 
shouldn't be threatened with criminal penalties for bringing exciting 
new products to market. Instead, they should be encouraged to develop 
new products that will add enjoyment and convenience to our lives, 
while creating good new jobs for American workers.
  Finally, we will encourage the growth of the Internet by eliminating 
the threat of certain copyright infringement lawsuits that telephone 
companies, service providers, and others face in helping consumers 
connect to the World Wide Web.
  Technology won't stand still. We need to move forward with the 
consideration of copyright legislation that promotes new technology, 
while protecting intellectual property rights. In doing so we must be 
diligent in looking to the future, not to the past, or to interests 
that would halt innovation to serve their own parochial concerns.
  At this critical juncture in history, we need to be sure we get it 
right. We can only do so by maintaining the balance that has served our 
country so well and for so long.




                          ____________________