A trio of Democratic and Republican congressmen is pushing a bill that would amend the Digital Millennium Copyright Act of 1998 (DMCA) to allow for so-called “fair use” of copyrighted digital materials by educators, librarians, students, artists, scientists, and other technology users and consumers.

The bill to amend the DMCA, the Digital Media Consumers Rights Act, was introduced in the House by Rep. Rick Boucher, D-Va.; Rep. Joe Barton, R-Texas; and Rep. John Doolittle, R-Calif. If passed, the bill would permit users to make copies of DVDs and other digital media for educational or research purposes. Supporters of the amendment, including education and consumer advocacy groups, say it would rightly extend the fair-use doctrine now enjoyed by users of print and analog media into the digital realm. But critics, including groups that represent digital content providers, argue the bill would weaken the copyright-protection measures that guard against digital piracy.

The DMCA amended U.S. copyright law to protect digitally recorded intellectual property from what Boucher has called the “twin threats” posed by the clarity of digitally recorded materials–the fact that copies of digitally recorded materials have the same quality and integrity as the original, no matter what their generation; and the ease with which pirated materials can be disseminated via the internet. The DMCA does so by making it illegal, under most circumstances, to circumvent digital locks placed on the content by copyright owners, even if the user’s purposes are otherwise permitted under U.S. copyright law.

Opponents of the DMCA say it so tightly controls security over digitally recorded content that it unfairly prohibits what is defined elsewhere in the Copyright Act as fair use. Boucher’s amendment aims to loosen restrictions to permit the bypassing of technical protections for the purposes of fair consumer and educational use and scientific research. To appease content providers, the bill also would have labels placed on product packages that say the digitally recorded materials being purchased are copyright-protected.

“For the movie and recording industries, legitimate educational and personal uses [of digitally recorded materials] are collateral damage in their attempts to stop piracy,” said Kenneth DeGraff, policy advocate for the Consumers Union, a nonprofit testing and information organization that represents consumers.

“If, for example, a student has 10 movies and wants to show a total of five minutes of clips, technically, [he or she] can compile those clips, show them in a classroom, and everybody’s better educated for it, were it not for an obscure federal law that prohibits [consumers] from using the media they buy in the way they want to use it,” said DeGraff.

DeGraff said the proposed amendment is “so narrowly crafted that it only protects the educator’s right to fair uses. You’re still doing an illegal act if you’re doing an illegal act.”

He added, “This [legislation] very narrowly targets the important doctrine of fair educational and personal use. Pirates and hackers have already found ways to circumvent many of these copy blocks. The only ones who can’t are everyday consumers and educators.”

Miriam Nisbit, legislative council for the American Library Association (ALA), offered another example.

“You have a middle school Spanish teacher who goes to Spain during her summer holiday and buys some Spanish movies on DVD. She returns home to her Spanish class and, because of what’s called ‘region coding,’ she can’t play the movies she buys in Spain on her DVD player back home,” Nisbit said.

“Our teacher could probably get her IT person–or her 14-year-old son, for that matter–to figure out how to get around the region coding. But under Section 1201 of the DMCA, she would be forbidden to do that. It would be against the law, even though she would be doing it legally as per other provisions of the Copyright Act.”

Nisbit continued: “To me, under those circumstances, the law doesn’t give us a good result. That is something she would be allowed to do if the law is amended. If you’re circumventing [the digital lock] for a non-infringing purpose that is permitted under the copyright law, then it is permitted. We think that is a good result.”

Nisbit said the proposed amendment also would make it clear that libraries would be permitted to make preservation copies of digital materials in the event that the format becomes obsolete–a standard operating procedure for many libraries that are now, for example, legally digitizing some print publications for the web.

Resistance to the proposed amendment is being driven by the Motion Picture Association of America (MPAA) and the recording industry. These content providers contend the DMCA’s provisions are the only way to protect their intellectual property from wide-scale theft and illegal distribution.

“The problem with [the bill] is that … it could easily lead to wanton piracy,” said John Feehery, MPAA executive vice president. “That’s our big concern. … We’ve already seen [the illegal exchange of digitally copied movies] on the internet. You see DVDs being pirated on almost every street corner, all over the world. It will become much worse if you have this [copyright-protection] technology made defenseless.”

Mark Cooper, director of research for the Consumer Federation of America, another consumer advocacy group that supports the DMCA amendment, scoffed at the notion that efforts to keep the 1998 legislation intact is the only line of defense against piracy for copyright holders.

“Every time there’s a major technological change, the copyright holders go into a piracy pattern. Their initial reaction has always been to tighten down and extend their copyright. It’s happened repeatedly over the past two centuries,” said Cooper.

“The MPAA said that the VCR was the ‘Boston Strangler’ of the movie industry,” he continued. “They wanted to outlaw the VCR.”

Feehery dismissed the notion. “People might break into stores, but does that mean you might as well just go ahead and leave the store unlocked?” he asked. “If people want to use [copyrighted content] for distance learning, they can get permission to do so.

“These people don’t believe in the idea of intellectual property. They believe all the information on the internet should be free,” Feehery added. “We ought to be able to protect our content; we ought to get paid for the content we produce. Yes, there’s a fair-use doctrine on some intellectual property. But this kind of technology makes piracy so much easier, it really threatens the industry. We have a right to protect the industry. It’s called self-preservation.”

He concluded: “You can copy from analog; you just can’t copy from digital.”


Digital Millennium Copyright Act

Digital Media Consumer Rights Act

Consumers Union

American Library Association

Motion Picture Association of America

Consumer Federation of America