by James L. Gattuso
October 4, 2002

Yet another front opened in the rapidly expanding digital copyright wars this week, as two bills were introduced in Congress to create “fair use” exemptions to the Digital Millennium Copyright Act. The bills, by Reps. Zoe Lofgren and Rick Boucher, represent a long-awaited counter-offensive by the anti-Hollywood side.

Proponents of the bills, ranging from Silicon Valley firms to Verizon to assorted consumer groups, sounded almost giddy at the developments. “It’s a great day,” stated the always-quotable Gary Shapiro of the Consumer Electronics Manufacturers Association, “today we go on the offensive.” Press reports eagerly played up the battle theme: typically contrasting the Lofgren and Boucher plans to Howard Berman’s pro-Hollywood “self-help” proposal.

The field seems set for a rhetorically bloody copyright donnybrook. Yet (like most Hollywood scripts) the reality is not as clean-cut. In fact, the latest proposals by each side have more in common than either would admit, and each has some merit.

The core of the proposals introduced this week is to ease the strict prohibition, imposed by the DMCA, on circumvention of anti-copying technologies. Specifically, the bills would allow circumvention for purposes of “fair use,” such as making copies for personal enjoyment. Circumvention would still be illegal, however, if the manufacturer provides some other way for consumers to engage in non-infringing uses.

Such a step seems to make sense. The DMCA prohibition not only limits individual consumer actions, but the development of new technologies. Policymakers should always be cautious about imposing any such prohibitions. In the case of DMCA, the ban was justified as being analogous to the sale of burglary tools: the seller is in effect abetting the burglary. But the argument doesn’t work if the tools have legal uses.

It’s unfortunate, however, that both bills go beyond this to impose new marketplace restrictions. Lofgren voids so-called “shrink-wrapped” licenses, limiting the ability of copyright owners to protect their rights through private, voluntary, contract. Boucher would impose a slew of labeling requirements on CDs, describing the equipment with which it is compatible, software requirements, and applicable return policies. Such requirements are unnecessary; consumers who care can easily get this information. The real purpose here seem simply to make it more costly to protect works from copying.

On the core DMCA issue, it’s important that neither bill would prohibit steps by copyright owners or manufacturers to impede copying, even fair use copying, of their product. They remain free to develop innovative technologies to protect their works, while others are free to counter those technologies. At least where non-infringing uses are concerned, technology rather than regulation would determine the level of protection.

The other side’s latest proposal, Rep. Berman’s H.R. 6211 similarly favors technology over regulation. This proposal would allow copyright owners to interfere with the unauthorized distribution of works over P2P networks. For instance, “spoofing” (placing decoy copies of protected works) on networks, or “first-in-line interdiction” (downloading works so as to make the unavailable to others), would be permitted. The plan has been intensely criticized by the Internet community, with opponents painting pictures of Hollywood hackers crashing PCs and deleting user hard drives. Yet the actual terms of the bill are quite limited: no files may be deleted, and only unauthorized distribution can be impeded–with full legal sanctions if copyright owners overstep their bounds.

None of the three recent bills are ideal–there are devilish details in each to be worked out. But, despite all the heated rhetoric, both approaches may be part of the solution to the digital copyright dilemma.