[Congressional Record (Bound Edition), Volume 149 (2003), Part 1]
[Extensions of Remarks]
[Pages 267-269]
[From the U.S. Government Publishing Office, www.gpo.gov]




              DIGITAL MEDIA CONSUMERS' RIGHTS ACT OF 2002

                                 ______
                                 

                           HON. RICK BOUCHER

                              of virginia

                    in the house of representatives

                        Tuesday, January 7, 2003

  Mr. BOUCHER. Mr. Speaker, I am pleased to join with my colleague from 
California, Mr. Doolittle, in re-introducing the Digital Media 
Consumers' Rights Act (DMCRA).
  The Digital Millennium Copyright Act of 1998 (DMCA) tilted the 
balance in our copyright laws too heavily in favor of the interests of 
copyright owners and undermined the longstanding fair use rights of 
information consumers, including research scientists, library patrons, 
and students at all education levels. With the DMCRA, we intend to 
restore the historical balance in our copyright law that has served our 
nation well in past years.
  In order to reduce growing consumer confusion and to reduce a burden 
on retailers and equipment manufacturers caused by the introduction of 
so-called ``copy protected CDs,'' we have also included in the bill 
comprehensive statutory provisions to ensure that consumers will 
receive adequate notice before they purchase these non-standard compact 
discs that they cannot record from them and that they might not work as 
expected in computers and other popular consumer electronics products. 
Consumers shouldn't have to learn after they get home that the product 
they just purchased can't be recorded onto the hard drive of a personal 
computer or won't play in a standard DVD player or in some automotive 
CD players.
  As my colleagues know, we introduced the bill at the end of last year 
to make clear that enactment of the legislation would be a high 
priority this year. We are now prepared to start the debate in earnest.


                  Background and Need for Legislation

  Before describing the provisions of the bill in detail, I think it 
useful to provide a general overview of what has occurred over the past 
five years and why we need to recalibrate the DMCA in light of that 
experience.
  As my colleagues may recall, in 1997 the Administration proposed 
legislation to implement two international copyright treaties intended 
to protect digital media in the 21st century. At the time, motion 
picture studios, record companies, book publishers, and other owners of 
copyrighted works indicated that the treaty implementing legislation 
was necessary to stop ``pirates'' from ``circumventing'' technical 
protection measures used to protect copyrighted works. As the bill was 
being formulated, it was clear that the proclaimed effort to crack down 
on piracy would have potentially harmful consequences for information 
consumers. Nonetheless, copyright owners asserted that the proposed 
legislation was not intended to limit fair use rights.
  At the time, libraries, universities, consumer electronics 
manufacturers, personal computer manufacturers, Internet portals, and 
others warned that enactment of overly broad legislation would stifle 
new technology, would threaten access to information, and would move 
our nation inexorably towards a ``pay per use'' society. Prior to 1998, 
the American public had enjoyed the ability to make a wide range of 
personal non-commercial uses of copyrighted works without obtaining the 
prior consent of copyright owners. These traditional ``fair use'' 
rights have long been at the foundation of the receipt and use of 
information by the American public, and have been critical to the 
advancement of important educational, scientific, and social goals.
  Congress was warned that overly broad legislation could have 
potentially harmful effects. Manufacturers of consumer electronic and 
other multiple purpose devices, for example, pointed out that a VCR or 
PC, among other popular devices, could be deemed to be an illegal 
``circumvention'' device. In response to these concerns, the 
Administration limited the prohibition to devices that are primarily 
designed or produced for the purpose of circumventing; have only a 
limited commercially significant purpose or use other than to 
circumvent; or are marketed for use in circumventing. Even with this 
modification, however,

[[Page 268]]

the provision still contained a fundamental defect: it prohibited 
circumvention of access controls for lawful purposes, and it prohibited 
the manufacture and distribution of technologies that enabled 
circumvention for lawful purposes. In apparent response to expressions 
of concern, the Administration proposed a ``savings'' clause 
(ultimately enacted as section 1201(c)(1)), which states that section 
1201 does not affect rights, remedies, limitations, or defenses to 
copyright infringement, including fair use. However, as at least some 
of us understood at the time, and two courts have since confirmed, the 
fair use defense to copyright infringement actions is not a defense to 
the independent prohibition on circumvention contained in Chapter 12 of 
the DMCA. Since Chapter 12 actions are not grounded in copyright law, 
the so-called ``savings clause'' preserving fair use defenses to 
copyright infringement actions is meaningless in the context of actions 
under the DMCA.
  Other problems were seen with the Administration's original draft. As 
Congress became aware that the Administration's proposal prohibited 
many other legitimate activities, our colleagues agreed to graft 
numerous exceptions onto section 1201. The House Committee on Commerce, 
in particular, sought to more carefully balance the interests of 
copyright owners and information consumers by including provisions 
dealing with encryption research, reverse engineering, and security 
systems testing. We can now see in retrospect, however, that these 
provisions did not go far enough.
  Congress made other changes in an effort to right the balance. 
Principally at the urging of consumer electronics manufacturers, 
Congress adopted the so-called ``no mandate'' provision to give 
equipment manufacturers the freedom to design new products without fear 
of litigation. Section 1201(c)(3) provides that, with one exception 
(set forth in section 1201(k)), manufacturers of consumer electronics, 
telecommunications, and computing products are not required to design 
their products to respond to any particular technological protection 
measure. (The only requirement imposed on device manufacturers is to 
build certain analog VCRs to conform to the copy control technology 
already in wide use in the market.) The ``no mandate'' provision was 
essential to addressing the legitimate concerns of the consumer 
electronics, telecommunications, and computer industries, which feared 
that section 1201 otherwise might require VCRs, PCs, and other popular 
consumer products to respond to various embedded or associated codes, 
or other unilateral impositions by content owners without the assurance 
of corresponding protections for equipment consumers. Moreover, through 
legislative history, Congress also made clear that equipment 
manufacturers were free to make adjustments to products to remedy 
``playability'' problems created by unilaterally developed technical 
measures.
  In the end, however, these changes were not enough to achieve the 
appropriate level of balance. In the end, the DMCA dramatically tilted 
the balance in the Copyright Act towards content protection and away 
from information availability.
  Given the breadth of the law and its application so far, the fair use 
rights of the public at large clearly are at risk. From the college 
student who photocopies a page from a library book for use in writing a 
report, to the newspaper reporter excerpting materials from a document 
for a story, to the typical television viewer who records a broadcast 
program for viewing at a later time, we all depend on the ability to 
make limited copies of copyrighted material without having to pay a fee 
or to obtain prior approval of the copyright owner. In fact, fair use 
rights to obtain and use a wide array of information are essential to 
the exercise of First Amendment rights. In my view, the very vibrancy 
of our democracy is dependent on the information availability and use 
facilitated by the fair use doctrine.
  Yet, efforts to exercise those rights increasingly are being 
threatened by the application of section 1201 of the DMCA. Because the 
law does not limit its application to circumvention for the purpose of 
infringing a copyright, all kinds of traditionally accepted activities 
may be at risk.
  Consider the implications. A time may soon come when what is now 
available for free on library shelves will only be available on a ``pay 
per use'' basis. It would be a simple matter for a copyright owner to 
technically enshroud material delivered in digital format and then to 
impose a requirement that a small fee be paid each time the password is 
used so that a digital book may be accessed by a library patron. Even 
the student who wants the most basic access to only a portion of an 
electronic book to write a term paper would have to pay. The DMCA 
places the force of law behind these technical barriers by making it a 
crime to circumvent them even to exercise fair use rights. The day is 
already here in which copyright owners use ``click on,'' ``click 
through,'' and ``shrink wrap'' licenses to limit what purchasers of a 
copyrighted work may do with it. Some go so far as to make it a 
violation of the license to even criticize the contents of a work, let 
alone to make a copy of a paragraph or two.
  To address these and other concerns that have been voiced since 
enactment of the DMCA, the bill we have introduced would amend sections 
1201 (a)(2) and (b)(1) to permit otherwise prohibited conduct when 
engaged in solely in furtherance of scientific research into 
technological protection measures. Current law permits circumvention of 
technological protection measures for the purpose of encryption 
research. The bill expands the exception to include scientific research 
into technological protection measures, some of which are not 
encryption. This change is intended to address a real concern 
identified by the scientific community. It does not authorize hackers 
and others to post trade secrets on the Internet under the guise of 
scientific research, or to cloak otherwise unlawful conduct as 
scientific research.
  Since September 11, 2001, we have all become more aware of the 
importance of improving the security of computer networks against 
hacking. Our computer scientists must be allowed to pursue legitimate 
research into technological protection measures to determine their 
strengths and shortcomings without fear of civil litigation or criminal 
prosecution under the DMCA. The public needs to know the genuine 
capabilities of the technological protection measures. The proposed 
amendment provides computer scientists with a bright line rule they can 
easily follow, and would encourage them to engage in research for the 
public's benefit.
  The bill we have introduced does what the proponents of section 
1201(c)(1) of the DMCA said it did, namely, to preserve the fair use 
rights of consumers under section 107 of the Copyright Act and under 
section 1201. (In 2001, for example, the presidents of the Business 
Software Alliance and the Interactive Digital Software Associations 
citing the ``savings clause'' stated in a letter to the editor of the 
Washington Post that ``[t]he DMCA did nothing to upset existing fair 
use rules that still permit a variety of academic inquiries and other 
activities that might otherwise be infringing.'') The bill amends the 
``savings clause'' to make clear that it is not a violation of section 
1201 to circumvent a technological measure in connection with gaining 
access to or using a work if the circumvention does not result in an 
infringement of the copyright in the work. In short, if a consumer may 
make a fair use of a copyrighted work, he may gain access to it and 
then make use of it without liability under section 1201. At the same 
time, if his or her conduct does not constitute fair use under section 
107, liability may attach under section 1201.
  In this connection, I think it important to stress that, when the 
DMCA was being debated equipment manufacturers unsuccessfully sought to 
clarify the savings clause in section 1201. Since enactment of the 
DMCA, these same manufacturers have had to build business plans that 
incorporate copy protection technologies into their digital product 
offerings in order to ensure that content will be made available to 
consumers in digital formats. At the same time, these manufacturers 
have worked to ensure that those technologies are used in ways that are 
consistent with consumers' customary recording and viewing practices. I 
recognize that because the determination of whether or not a particular 
use is considered a ``fair use'' depends on a highly fact specific 
inquiry, it is not an easy concept to translate into a technological 
implementation. Our bill is not intended to encourage consumers to 
disable copy protection systems in order to gain increased access to 
protected works where the technology has been implemented in a manner 
that seeks to accommodate the consumer's fair use expectations. 
Instead, this proposal is in pursuance of a larger objective of 
ensuring that existing copy protection measures are implemented in ways 
that respect consumers' customary practices and ensuring that, as 
future technologies are developed, they incorporate means by which fair 
use of content can be made. As Congress demonstrated in developing 
section 1201(k) of the DMCA, there are ways to balance legislatively 
the interests of content owners and consumers when technological 
solutions that respect fair use practices can be agreed upon by all 
parties.
  In addition to restrictions on their fair use rights, consumers face 
a new problem as record companies increasingly introduce into the 
market non-standard ``copy-protected compact discs.'' As widely 
reported in the press, consumers have found that these ordinary-looking 
CDs do not play in some standard

[[Page 269]]

consumer electronics and computer products and that they cannot be 
copied on computer hard drives or in CD recorders. Without question, 
record companies should have the freedom to innovate, but they also 
have the responsibility to provide adequate notice to consumers about 
the ``recordability'' and ``playability'' of these discs. They have not 
done so. For that reason, I believe it is appropriate for Congress to 
now step in. Our bill will ensure that non-standard discs are properly 
labeled to give consumers adequate notice of all dysfunctionalities.
  In this connection, I think it is important to note that the 
conferees to the DMCA expected all affected industries to work together 
in developing measures to protect copyrighted works. As the conferees 
pointed out, ``[o]ne of the benefits of such consultation is to allow 
testing of proposed technologies to determine whether there are adverse 
effects on the ordinary performance of playback and display equipment 
in the marketplace, and to take steps to eliminate or substantially 
mitigate those effects before technologies are introduced.'' That 
process does not appear to have been employed with regard to the new 
unilaterally developed methods being used to protect compact discs.
  In closing, I think it important to stress that, for over 150 years, 
the fair use doctrine has helped stimulate broad advances in scientific 
inquiry and in education, and has advanced broad societal goals in many 
other ways. We need to return to first principles. We need to achieve 
the balance that should be at the heart of our efforts to promote the 
interests of copyright owners while respecting the rights of 
information consumers. The DMCRA of 2003 will restore that balance.
  We urge our colleagues to join us as cosponsors of this important 
legislation.

                          ____________________