[Congressional Record Volume 149, Number 127 (Tuesday, September 16, 2003)]
[Senate]
[Pages S11571-S11576]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BROWNBACK:
  S. 1621. 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; to 
the Committee on Commerce, Science, and Transportation.
  Mr. BROWNBACK. Mr. President, I rise to introduce the Consumers, 
Schools, and Libraries Digital Rights Management Act of 2003, 
legislation I view as vital for American consumers and our Nation's 
educational community as they venture forth into the 21st century 
digital media marketplace.
  This legislation responds directly to ongoing litigation between the 
Recording Industry Association of America and Internet service 
providers Verizon and SBC Communications. This litigation has opened 
wide all identifying information an ISP maintains on its subscribers, 
effectively requiring ISPs to make that information available to any 
party simply requesting the information. The legislation also creates 
certain minimal protections for consumers legally interacting with 
digital media products protected by new digital rights management 
technologies.
  I had intended to introduce individual pieces of legislation on these 
issues--privacy and digital rights management. However, given that both 
issues are so relevant to consumers in the digital age, I ultimately 
decided to present them to my colleagues in one comprehensive bill.
  It has been determined by a Federal court that a provision of the 
Digital Millennium Copyright Act permits the RIAA to obtain this ISP 
subscriber's identifying information without any judicial supervision, 
or any due process for the subscriber. Today, right now, solely due to 
this court decision, all that is required for a person to obtain the 
name and address of an individual who can only be identified by their 
Intent Protocol address--their Internet phone number--is to claim to be 
a copyright owner, file a one page subpoena request with a clerk of the 
court,

[[Page S11572]]

a declaration swearing that you truly believe an ISP's subscriber is 
pirating your copyright, the clerk will then send the request to the 
ISP, and the ISP has no choice but to divulge the identifying 
information of the subscriber--name, address, phone number--to the 
complaining party. There are no checks, no balances, and the alleged 
pirate has no opportunity to defend themselves. My colleagues, this 
issue is about privacy not piracy.
  The real harm here is that nothing in this quasi-subpoena process 
prevents someone other than a digital media owner--say a stalker, a 
pedophile, a telemarketer or even a spammer from using this quasi-
subpoena process to gain the identity of Internet subscribers, 
including our children. In fact, we cannot even limit this subpoena 
process to mainstream copyright owners.
  This past July, SBC Communications received a subpoena request for 
the personal information of approximately 60 of its Internet 
subscribers. The copyright owner that made the request is a hard core 
pornographer named Titan Media. We cannot permit the continued 
existence of a private subpoena that can be used by pornographers to 
easily identify Americans. If you have any doubt, all you need to do is 
look into the generous amnesty program offered by Titan Media to those 
it accuses of piracy: buy their porn, and they won't use the subpoena 
to identify you. The threat of abuse is simply too great, as Titan 
Media has already demonstrated.
  The Consumers, Schools, and Libraries Digital Rights Management 
Awareness Act of 2003 requires the owners of digital media products to 
file an actual case in a court of law in order to obtain the 
identifying information of an ISP subscriber. This will provide 
immediate privacy protections to Internet subscribers by forcing their 
accusers to appear publicly in a court of law, where those with illicit 
intentions will not tread, and provides the accused with due process 
required to properly defend themselves.
  In addition, the bill requires the Federal Trade Commission to study 
alternative means to this subpoena process, so that we may empower our 
Nation's intellectual property owners to defend their rights by 
pursuing those who are stealing from them, but to do so in a safe, 
private, confidential manner where consumers are concerned, and without 
burdening the courts. Transitioning to an FTC process will ensure that 
there can be speedy verification, due process, safety, and maximum 
protection for the innocent, while preserving maximum civil enforcement 
against pirates.
  I do not offer this legislation to debate the history and merits of 
the DMCA. I offer this legislation for my colleagues consideration, 
because I find it untenable that any Internet subscribers' identifying 
information can be obtained, under government auspices no less, without 
any oversight or due process.
  I want to be celar on an important point. This subpoena is mostly 
being sought by mainstream digital media owners who are seeking to 
prevent piracy performed using peer to peer file sharing software. 
While I am as disappointed as anyone that the mighty RIAA would choose 
to force a little 12-year-old girl--one of the Internet subscribers 
identified through an RIAA subpoena--and her mother to pay them $2000 
for the girl's piracy, I am still opposed to piracy as much as any 
Member of Congress. I have a strong record on property rights to back 
that up. I have no interest in seeking to shield those who have 
committed piracy from the law or hamper the ability of property owners 
to defend their rights. My concern with this quasi-subpoena process is 
with the problems it creates. I have made it very clear to all 
stakeholders that I stand ready to work on alternative legislation if 
they perefer something else to this provision, but unfortunately that 
offer has been flatly rejected.
  This week the Senate voted to reverse the Federal Communications 
Commission's new media ownership regulations. I opposed that 
resolution, because I do not believe the FCC's amendments to its media 
outlet ownership rules are a threat to competition and diversity. 
However, I do stand with my colleagues in supporting a media 
marketplace where information flows from numerous sources and our 
constituents are empowered by a full range of robust digital outlets 
and new digital technologies available to them in the 21st century 
media marketplace. While well intentioned, I believe my colleagues are 
simply focusing on the wrong issues in the current debate over media 
ownership.
  Digital rights management, otherwise known simply as DRM, refers to 
the growing body of technology--software and hardware--that controls 
access to and use of information, including the ability of individuals 
to distribute that information over the Internet. Over the past few 
years the large media companies have persistently sought out new laws 
and regulations that would mandate DRM in the marketplace, denying 
consumers and the educational community the use of media products as 
has been customarily and legally permitted.
  As a result, the Consumers, Schools, and Libraries Digital Rights 
Management Awareness Act of 2003 will preclude the FCC from mandating 
that consumer electronics, computer hardware, telecommunications 
networks, and any other technology that facilitates the use of digital 
media products, such as movies, music, or software, be built to respond 
to particular digital rights management technologies.
  Consumers and the educational community are legally permitted to use 
media products in a host of ways. Some of these uses are specifically 
identified in the Copyright Act as limitations on the rights of 
copyright owners. Many of these uses are the result of court decisions 
interpreting one of those limitations, the limitation known as Fair 
Use, and customs based on those court decisions. As a result, consumers 
can record cable and broadcast programming for non-commercial, private 
home use. They can lend DVDs and CDs to friends and family. They can 
make copies of movies and music in different formats so that they can 
use them with different types of playback devices. Media products can 
be used for criticism, research, and a range of other educational 
purposes that include acts of redistribution. All of these uses of 
content can be made by consumers and the educational community under 
the Copyright Act, and none of them require the permission of the 
copyright owner.
  The same digital marketplace that has given rise to DRM is also 
updating the ways consumers and the educational community may use media 
products in powerful new ways. Broadband connectivity and new digital 
networking technologies--used in homes, offices, schools, and 
libraries--raise the prospect of never having to use physical media 
again. Instead, consumers, employees, students, and library patrons 
could access legally owned and legally possessed media products that 
reside on such a network remotely, via the Internet. These developments 
could revolutionize the information age at its onset.
  Digital rights management can both help and hinder this evolutionary 
process. DRM can be a powerful tool for combating digital piracy. It 
can tether digital content to specific devices, preventing that content 
from being used on other devices. DRM can also prohibit Internet 
redistribution of digital media products.
  DRM also has its downside, especially when it is incorporated into 
digital media products, and purchased unwittingly by consumers. Some 
consumers have already become acquainted with DRM in the marketplace 
this way. Less than 2 years ago music labels began selling copy-
protected CDs. Consumers came to find their CDs--that look just like 
the CDs they have been purchasing for years--would not play on many 
personal computers, and in some instances became lodged inside them. In 
addition, they could no longer make the legal practice of converting 
them into digital MP3 files for use on portable MP3 players. More 
recently, consumers purchasing the popular tax filing software, Turbo 
Tax, came to realize they could only use the software on the first 
computer they downloaded it onto, never mind situations where they 
desperately needed to complete their tax filings on a different 
computer. I have no doubt that came as a nice surprise to taxpayers 
pressing to meet filing deadlines. It is my understanding that many 
consumers are registering their view on this use of DRM by purchasing 
competing software not so limited.

[[Page S11573]]

  When combined with government mandates requiring that all consumer 
appliances use or respond to specific DRM technologies and 
capabilities, the potential for mass consumer confusion and disservice 
is clear. I introduce this legislation today, because DRM mandates 
sought by the major media companies are threatening to create just such 
an experience for consumers and the educational community. I can think 
of no greater threat to media and information diversity and competition 
than large, vertically integrated media and Internet companies using 
DRM technology mandates to not only control distribution of content, 
but also the ways in which that content is used by consumers in the 
privacy of their homes, by teachers in our Nation's classrooms and 
educational institutions, and by all Americans in our libraries.
  Last week, the Federal Communications Commission adopted regulations 
approving a private sector agreement between the cable TV industry and 
the consumer electronics industry, called the Cable-CE ``Plug and 
Play'' agreement. The Plug and Play agreement governs how consumer 
electronics devices, information technology, and cable TV networks work 
together. Both the cable TV and CE industries should be commended for 
working together to make digital TV sets ``cable ready,'' and speeding 
the transition to digital television for consumers.
  This private agreement includes digital rights management 
provisions--called ``encoding rules--that are aimed at protecting cable 
TV programming from piracy, but in a manner that seeks to preserve the 
customary and legal uses of media by consumers and the educational 
community to the greatest degree possible.
  The agreement is technology neutral, in that new DRM content 
protection technologies may be devised and deemed compliant with the 
security protocols of the Plug and Play agreement. A proponent of a new 
content protection technology has a right to appeal to the FCC if Cable 
Labs rejects that technology, and the FCC will conduct a de novo review 
based on objective criteria. Unfortunately, the Commission may take a 
very different approach in protection broadcast digital television 
programming from piracy in its ``Broadcast Flag'' proceeding, as first 
proposed by the big media companies, and later joined by a very select 
group of electronics companies that own the patent in the one DRM 
technology, 5C approved for use in the proposal. The broadcast flag 
proposal requires every device that receives digital television content 
to recognize a ``flag'' that can be attached to DTV programming, and to 
respond to the flag by encrypting the content using an ``authorized 
technology'' that would be expressly required by FCC regulation.

  Unlike the Plug and plan agreement, the broadcast flag proposal makes 
it difficult for new DRM technologies to be deemed ``Broadcast Flag'' 
compliant. The principal approval role for alternate DRM content 
protection technologies is vested in several big media companies and 
some of the narrow group of electronics companies owning the patent in 
5C. In the only circumstance under this proposal where the FCC would 
have a role in approving a new technology, the baseline for FCC 
consideration would be the preordained 5C technology and their 
associated license terms. I hardly consider a proposal to be technology 
neutral when such important competitive determinations are placed in 
the hands of invested stakeholders as gatekeepers. Such a proposal 
deprives the market place of the very qualities the media companies 
need to fight piracy: competition and innovation. I commend Intel, one 
of the 5C companies, for recognizing this grim reality and being bold 
enough to support a different course, as I will outline in a moment.
  The important of technological neutrality in the Plug and Play 
agreement versus the tech mandate in the Broadcast Flag becomes very 
clear when you review the particular provisions of each agreement.
  In today's world, a DRM technology does not seem to exist that can 
both permit consumers to use the Internet to legally access content 
stored in their homes--on a home network for instance--while also 
preventing the unfettered Internet redistribution of such content. 
However, because the Cable-CE agreement envisions new DRM technologies, 
and make it possible for them to be approved for use with cable 
networks and CE devices, the potential for a new DRM technology that 
can strike this important balance exists.
  Since the Flag proposal is so closed off to new technologies, it is 
unlikely that it will evolve to permit point-to-point redistribution of 
digital broadcast content over the Internet, for example, from one's 
home to one's office or from a son or daughter to any elderly parent. 
Furthermore 5C is capable of completely locking down the ways consumers 
and the educational community can record or otherwise use DTV content. 
It is no wonder then that the technical specifications for the actual 
Flag itself in major media's proposal provides for the possibility that 
it can be used to send new, more restrictive encoding rules to consumer 
electronics devices that operate DTV content.
  The Consumers, Schools, and Libraries Digital Rights Management 
Awareness Act of 2003 will ensure that anti-piracy policies for 
broadcast DTV will provide maximum protections for industry, but in a 
manner that relies on innovation, competition, and serving the 
interests of consumers to achieve that goal.
  First, the bill prohibits the Federal Communications Commission from 
moving forward with any new proceedings that impact the ways in which 
consumers may access or distribute digital media products, aside from 
the two previously mentioned proceedings. This will negate any future 
efforts by the big media companies to further expand the ways in which 
they can control how content may be legally used.
  Second, the bill sets ground rules for the FCC's broadcast flag 
proceeding. It permits the FCC, if it has such authority, to require 
consumer electronics companies to detect a Broadcast Flag and prohibit 
illegal Internet retransmission of digital broadcast programming to the 
public when it detects the flag. However, this proposal relies on a 
self-certification requirement, so consumer electronics and information 
technology companies can deploy competing and innovative DRMs that 
prohibit DTV piracy immediately, not subject to the whims of industry 
gatekeepers. Like the Plug and Play agreement this proposal provides a 
meaningful role for the FCC, not industry stakeholders, to resolve any 
controversies that may arise with new technologies.
  In addition to addressing the threat of FCC tech mandates in the 
broadcast DTV space, this legislation also addresses other important 
concerns regarding the introduction of DRM into the marketplace, to 
prevent some of the experiences of consumers with this important 
technology to date.
  First, the bill provides on year for all stakeholders in the digital 
media marketplace to voluntarily devise a labeling regime for all DRM-
enabled digital media products, including those made available solely 
online, so consumers will know what they are buying when they but it.
  Second, the bill prohibits the use of DRM technologies to prevent 
consumers from reselling the used digital media products they no longer 
want, or from donating used digital media products to schools and 
libraries.
  Finally, the bill directs the Federal Trade Commission--our Nation's 
premier consumer protection agency--to carefully monitor the 
introduction of DRM into the marketplace, reporting to Congress in 
incidents of consumer confusion and dissatisfaction, and suggesting 
measures that can ease the impact DRM has on law abiding consumers.
  The Senate has responded to what many view as the threat of 
increasing consolidation in the media marketplace. If my colleagues are 
concerned with consolidation in outlet ownership then I have no doubt 
they will be equally concerned with Federally-mandated controls over 
how consumers and the educational community may actually use 
information flowing through those outlets. Piracy Prevention is a goal 
we can all work together to pursue. DRM-mandated business models, 
however, should not be the product of this Congress or any agency under 
our jurisdiction. The Federal Communications Commission seems to be 
missing this point. I encourage all of my colleagues to work with me to 
put the

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brakes on the FCC. Support the Consumers, Schools, and Libraries 
Digital Rights Management Awareness of 2003.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:
       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; and
       (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 one 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

[[Page S11575]]

       (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 in 
     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.
       (9) Redistribution controlled digital media product.--The 
     term ``redistribution

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     controlled digital media product'' means a digital media 
     product, as defined in this section, to which a 
     redistribution control technology has been applied.
       (10) 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.
                                 ______