Senator wants limits on copy protection

[Dave Farber <dave () farber net>]

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Senator wants limits on copy protection
By Declan McCullagh
Staff Writer, CNET News.com
June 4, 2003, 9:54 AM PT

http://news.com.com/2100-1028-1013037.html
WASHINGTON--A conservative Republican senator said Wednesday that he has
drafted a bill that would scale back the ability of record labels, movie
studios and software companies to use anticopying technology.

The bill, authored by Sen. Sam Brownback, would regulate digital rights
management systems, granting consumers the right to resell copy-protected
products and requiring digital media manufacturers to prominently disclose
to consumers the presence of anticopying technology in their products.

The Kansas Republican's bill requires that a copyright holder obtain a
judge's approval before receiving the name of an alleged peer-to-peer
pirate. That would amend the 1998 Digital Millennium Copyright Act, which a
federal court concluded enables a copyright holder to force the disclosure
of a suspected pirate's identity without a judge's review. This law is at
issue in the recording industry's recent pursuit of the identity of a
Verizon Communications subscriber.

The main thrust of the Brownback bill, however, is to slap regulations on
digital rights management (DRM) technology, which has become increasingly
popular tool in reducing the widespread copyright infringement on the
Internet. Last month, Microsoft CEO Steve Ballmer stressed his company's
support for DRM technology. Apple Computer also uses DRM to limit how
customers can reuse music that's downloaded from the iTunes Music Store.
Some consumer groups argue that DRM infringes on the right to make "fair
use" of copyrighted works and to back up legally purchased digital files.

"The legislation seeks to create new tools to combat unfettered Internet
piracy of digital content while maintaining the important ability of our
nation's hardware manufacturers to innovate and build products consumers
need and want to use," Brownback said in a statement. "The legislation
recognizes that the same DRM technologies used to combat piracy are also
sought after by the content industry to create new DRM-enabled business
models. My legislation gives them a free hand in seeking out DRM
technologies that permit them to explore these new opportunities, but
ensures their success or failure will rest in the marketplace, where it
belongs--not in Congress."

If the Brownback proposal were enacted, the Federal Trade Commission would
have the power to ban DRM systems that limit a consumer's right to resell
any "digital media product," a category that includes everything from
computer software to e-books to copy-protected CDs and movies. It also says
that companies selling such products must offer "clear and conspicuous
notice or a label on the product" indicating the presence of anticopying
techology that follows FTC regulations, starting one year after the law's
enactment, unless the FTC determines that industry groups have created
reasonable "voluntary" guidelines of their own.

At a privacy and politics summit here on Tuesday, an industry representative
said the bill--called the Consumers, Schools and Libraries Digital Rights
Management Awareness Act--will likely be introduced at a press conference in
the middle of next week. A representative for Brownback said Wednesday that
he could not confirm when the event would be held, except to say it would
take place "shortly." Brownback, a conservative with a 100 percent vote from
the American Conservative Union in 2000, is a member of the Senate
Communications Subcommittee.

"We're going to support it," Mike Godwin, an attorney with advocacy group
Public Knowledge, said of Brownback's plan. "I think that Sen. Brownback and
his staff have clearly made an effort to develop a bill that addresses some
of the major excesses that we're seeing in the policy arena at the
intersection of copyright policy and technology policy."

However, a representative at the Recording Industry Association of America
said the legislation is "weighted down with a variety of bad public policy
judgments hostile to all property owners. The DMCA was a carefully crafted
compromise and balance struck by Congress. That's why efforts to cherry-pick
particular provisions are likely to fail."

"With respect to the information subpoena provision," the RIAA
representative continued, "the intent of Congress was clear and appropriate,
and the district court's decisive rulings show that Congress got it right."

A draft of the Brownback bill provided to CNET News.com by a congressional
aide also: 

€ Prohibits the Federal Communications Commission from forcing companies
that make or sell PCs or digital video products to include specific
copy-protection technology in them.

€ Requires the FTC to create an advisory committee that will describe "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." 

€ Requires the FTC to prepare a report two years after the bill is enacted
into law. The report would include information about how prevalent DRM
technologies are, whether they allow "consumers, educational institutions
and libraries to engage in all lawful uses of the product," and how often
copyright holders have tried to glean subscriber information from Internet
service providers. 

Adam Thierer, an analyst at the free-market group Cato Institute, applauded
parts of Brownback's bill--such as limiting the FCC's power--but said it was
a mistake to involve the federal government in regulating DRM technology.

"It's a decidedly mixed bag," Thierer said. "There are some things worth
praising, such as opposing technology mandates from the FCC, but the baggage
in this bill in terms of the FTC regulations are somewhat troubling...There
are requirements that cut in the opposite direction. That's really
unfortunate." 

An unrelated bill already introduced in Congress by Sen. Ron Wyden, D-Ore.,
takes a similar approach in part, saying that software, music and movies
that include copy-protection technology must be prominently labeled as
having such technology, with consumer warnings.


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