Speech by Rep. Rick Boucher (D-VA) titled "Protecting the Information Commons: Asserting the Public Interest In Copyright Law and Digital Infrastructure".
Date: May 10, 2002.

I am going to spend my time this morning talking about a problem that I see. And that is what has been a consistent erosion over the last few years of the very precious fair use rights. I am also going to talk about what I think we need to do in the Congress in order to reaffirm and, to the extent that it has been lost, re-establish those rights. And I will say a word about why I have optimism that we can succeed in this effort. This is, I think, an appropriate forum for an examination of this subject. I note, from looking at your conference materials, permeates, to some extent, most of the dialogue that you have here today.

In the United States there has been a broad agreement that our laws can recognize the rights of the creators of intellectual property, as an incentive for the future creation of original works. And, I can tell you that I strongly share that belief. I am a strong defender of intellectual property, and the rights of companies and individuals who have created that work to receive fair compensation through the ability to limit for a reasonable period of time the use of that work, in order to gain fair compensation for the creativity that they have demonstrated.

I also want to acknowledge from the outset the tremendous benefit that American ingenuity, including inventions, and literature, and recorded music, and motion pictures, that are made here in the United States, has conferred upon the American economy, whose benefits are self evident, as they are broadly acknowledged.

I also want to say that only through the compensation assurance that is provided by intellectual property laws can we expect these economic benefits to continue. Nowhere in the debate that is now emerging about the need to enhance and protect the rights of the users of intellectual property is there the slightest argument, or the slightest notion, that intellectual property laws are not (needed ?), and we have to begin this dialogue by acknowledging that they are.

But just as American law has always protected the rights of creators to receive fair compensation, through an application of the intellectual property laws, American law has always historically contained another recognition of the rights of the users of intellectual property

When you whistle in the shower, if someone hears you whistling in the shower, that is a public performance. And if the music that you are whistling happens to be subject to a copyright, in the absence of the fair use doctrine, you would be guilty of copyright infringement.

Now, we have a fair use doctrine that says that you don't have to call the composer, the publisher, perhaps the recording industry, that recorded a song, and get permission, from those individuals to whistle in the shower. The same thing is true if you quote a line from a poem to your girlfriend, boyfriend, husband, wife -- if you have all of those things -- [Audience laughter.]

You don't have to get the permission of the copyright owner in order to quote that line from a poem -- another application of the fair use doctrine.

The student at the public library does not have to get permission from the author of a book in order to take that book from the shelf, and go over to a photocopier and copy the one page that that student needs in order to complete his term paper, so that he can take it home and in the convenience of his home setting complete that paper. He is using the fair use doctrine in order to do that.

These every day uses of copyrighted works are permitted to users under historic American law. And that law enables reasonable use, and copying of protected works, for personal convenience in a non-commercial setting. The fair use doctrine keeps intellectual property laws in check. While acknowledging that creators of works should be reasonably compensated when their works are used commercially, it keeps them from having monopoly control of the material that is subject to their copyright.

Editor's Note: readers may wish to read the first statement of the doctrine of fair use, by Justice Story, in Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).

The fair use doctrine was in fact created by the courts as a way to give substance to First Amendment freedom of speech rights. Simply put, free speech does not mean very much if you have you to get the permission of a copyright owner in order to use words in a series that perhaps, coincidentally, are subject to a copyright. So the fair use doctrine was essential in the view of the American courts in order to give vitality to our precious First Amendment freedom of speech right.

It is the fair use doctrine that allows society to have an active discourse, while at the same time granting compensation rights to authors and to artists. It is the oil that keeps the machine from seizing up.

Editor's Note: See, full text of the Digital Millennium Copyright Act, HR 2281, a 94 pages PDF document, or 18 page summary by the Library of Congress in PDF.

Today, however, that precious fair use right is under attack as it never has been before in the history of our country. The balance that we have always enjoyed in our law between the rights of the owners of the intellectual property, and the rights of the users of intellectual property is now fundamentally changed. That balance was changed by a number of steps.

It was changed the enactment of the DMCA.

Editor's Note: See, Eldred v. Ashcroft, a constitutional challenge to the Copyright Term Extension Act, now pending before the Supreme Court.

It was changed by the extension of copyright terms for twenty years, a subject that I am pleased that the U.S. Supreme Court is now examining, to determine whether that latest copyright term is extension is consistent with the limitations on the copyright interest that is stated in the U.S. Constitution. And I am concerned that this shift in the historical balance in favor of the owners of intellectual property will broadly diminish what you are here to discuss today, and that is the public commons of information that is so essential for progress in our society.

Let me just talk a little bit about one of the major things that concerns me greatly, and Mike suggested this in his introduction, and that is the passage in 1998 by the Congress of the DMCA. I am mindful of what happened, because as Michael also indicated, I was serving on the two committees that considered this measure. I was taking the position that fair use rights should be defended, and it was a kind of a lonely fight. There was no one else who was willing to pick up this cause. And there was a reason for that. It was that those who were defending the consumer interest -- those who were defending right to use intellectual property consistent with fair use principles weren't particularly well organized.

But on the other side of the table there was a very powerful organization -- that was America's entertainment industry. The Motion Picture Association, and the Recording Industry Association, came to the Congress and made what was, at least superficially, a compelling case for change. These industries said that simultaneous arrival in American society of digital technology, in which a copy of a copy of a copy has the original's clarity and integrity, unlike analog copies that degrade with successive copying, teamed with the arrival of the Internet, in which those digital copies could be sent to thousands of people with the simple click of a mouse -- dramatically, increase the risk of piracy of their intellectual property. This was an easy argument to understand. It was cleverly couched in a way that was appealing to members of Congress who weren't particularly schooled in the intricacies of intellectual property, and even to those who were.

And, many believed that some kind of change to the intellectual property laws to accommodate the simultaneous arrival of digital technology and the Internet was necessary. And so a powerful force was built for enacting the change that the entertainment industry was recommending.

The question that Congress should have focused on was to what extent was some change justified, and how broad should any new protections be. But what should have been an extensive debate turned out to be almost no debate at all. And the legislation was adopted by the Congress almost without modification from the time that it was introduced.

So powerful was the claim of vulnerability to piracy that Congress in passing the DMCA granted unprecedented rights to the owners of intellectual property, which unless changed, will cede to the intellectual property owner total control over the work. The new rights go well beyond the what is necessary to ensure fair compensation to the intellectual property owner. These new rights go well beyond what is necessary to thwart piracy.

These new rights forecast a time when what is available for free on the library shelf today, and for limited copying for personal use purposes, for free today, will be converted into material available only on a pay per use basis in the future. Total control over the work in ceded through this law to copyright owner. And, we see the copyright owners beginning to exercise that greater degree of control at the present time.

The most troubling provision of the DMCA are found in Section 1201. For those who are lawyers here, and familiar with copyright law, I will cite some sections: 1201(a), and then a second group of sections, 1201(a)(2) and (b). 1201(a) creates a new federal crime. It is a crime of circumventing an technological protection measure that guards access to a copyrighted work. It does not matter under this new federal criminal statute why a person is circumventing. If a person circumvents for the purpose of infringing a copyright, I think we all would agree that that is not appropriate. But, if a person circumvents for the purpose of exercising a fair use right, that conduct should not be criminal. Now, I had offered in 1998 a series of amendments that would have established that balance, and that principle, and said that circumvention for pirates would be unlawful, but circumvention for the purpose of exercising fair use rights would not.

Let's talk about a couple of fair use rights that are infringed by virtue of this provision. If you go today to a rental store, and you rent a DVD, you can bring it home, and if you want to use it on your computer, and you happen to have a Linux operating system on your computer, you will find that the DVD does not play -- at least unless they have changed the encryption technology since the last time I checked. (inaudible phrase) it won't play.

Now, you can go down to the college bookstore and buy a t-shirt that has the code on it for bypassing the encryption technology on the DVD. That is commonly available in (inaudible phrase). You don't have to do anything unlawful in order to get a hold of that information. Just go buy a t-shirt down at the college bookstore. But, if you use that information, in order to conduct a lawful act, or let's say, a harmless act, and that is, bypassing this technology, so that your DVD will play on your Linux operating system, you have committed a crime. You have circumvented a technological protection measure that guards access to copyrighted work. It is harmless conduct. The copyright owner is not injured by what you have done. But that is a criminal offense.

If you go down to the CD store today, and you buy one of those new copy protected CDs -- they are not very well labeled, and so you may not really realize what you bought until you come home, and when you come home you might want to create a play list on your computer, or you might want to create your own CD, in which you rearrange the tracks on the one that you bought, and perhaps blend in from other CDs that you have also lawfully acquired. You might want to those things. And you will very soon find that you can't. Depending on what kind of technology is used to prevent copying, it is very possible that you can't create a play list on your computer. And if the technology works at all, you are not going to be able to make your own CD. Now, millions of Americans have become accustomed to exercising the fair use right of space shifting and creating their own CDs at home for use in their personal environment of the home and the office and their car, and when they travel on the road to other places to be able to make their music portable and take it with them -- to be able to listen to the music in the order in which they want to hear it. Millions of Americans are utilizing this fair use right. And that right is now being subverted by the practice of recording companies of introducing copy protected CDs into the market.

Let me digress from this example, just to make another point, and that is, I really don't understand the strategy of the recording industry in doing this. If you listen to the claim of the recording industry, they will only say that the greatest threat of piracy that they face is the Internet and free peer to peer file sharing, from Napster, Kazaa, Morpheus, et cetera. If you look very carefully at the application of copy protected CDs, you can readily see that copy protecting CDs is not going to do very much, if any thing at all, to address that problem. Why? Because somebody is going to find a way to bypass the copy protection mechanism. Somebody is going to upload that music to the Internet. Once it is uploaded to the Internet, it is going to stay there. And it will find its way in to the peer to peer file sharing (systems?).

Now, when pressed the industry admits this fact, and will say that "yes, copy protecting CDs doesn't do very much if anything at all to guard against their problem of music being available in peer to peer file sharing services for free". They say that it guards against the individual at home, buying the music and making a couple of copies and giving those to friends. Well, that is a low level of misuse of copyrighted material which has always been tolerated by the recording industry.

And I am really not convinced that that low level of misuse is in any way responsible for the drop of CD sales. I frankly think the lack of willingness of industry to embrace the power of the Internet as a distribution medium is more responsible for their drop in music sales.

So, I am a little perplexed about why they are carrying out this strategy. But, carrying it out they are. In any event, if you are misfortunate enough to buy one of those CDs and want to create your own CD from it you are not going to be able to do that. And so there are a lot of fair use applications that Section 1201(a)(1) inhibits, and that needs to be addressed.

The biggest problem that I see is that these provisions really do lead to the day when material that is delivered in digital format to libraries is going to be guarded in some fashion with a gate keeping mechanism. That may be a password. It may be some more sophisticated encryption. And, the material will then only be available once the copyright owner says that password can be used, or the encryption defeating mechanism is available for lawful use. And, that will only be in return for a payment. And, it may be a small payment. It could be fifty cents for every use. But the day will come, and granted by the power of this law, when what is available for free today on a library shelf will be available only for pay for use in the future. And that is, I think, one of the great tragedies and harms of this law.

The second set of provisions are equally troubling. And, these are, frankly, that ones that until now, have received the largest amount of public comment. Section 1201(a)(2) and and Section 1201(b) create another crime, and this is the crime of trafficking in a circumvention technology. It was under these provisions that Mr. Sklyarov was arrested. It is under these provisions that the prosecution of his employer, Elcomsoft, is now going forward. He had technology that could be put to both infringing uses and non-infringing uses. His non-infringing uses, in my opinion, were substantial. For example, if a person had purchased the text of an e-book that was guarded with the ability -- technology -- software --. The Elcomsoft system would allow a bypassing of that for the purpose of enabling someone to put that e-book on a portable computer -- something they might take on the road, or to their vacation home, to read over the weekend. That is a classic fair use -- space shifting material that has been lawfully acquired.

But, of course, there were infringing purposes to which the technology could also be put. And, under the DMCA, it does not matter that there were substantial non-infringing applications. What mattered was a belief on the part of the prosecutor in filing this charge that the primary intent of the manufacturer, at the time that this product was manufactured, was that it be used for an infringing purpose.

Editor's Note: See, Sony Corp. v. Universal City Studios, 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984).

We used to have a pretty good test (or text?) in this area. And I know that there are a lot of lawyers in this room, and I will talk a little bit about the legal background here. In the 1980s the U.S. Supreme Court handed down a very useful decision. It was in the Betamax case. This was the decision which followed the attempt by the motion picture industry to outlaw the VCR, as technology that facilitated infringement. The Supreme Court said that the VCR was lawful because it had a substantial non-infringing use. (inaudible phrase) But the real value of that decision was not so much that it just said that the VCR can record. The real value is that it handed down a broad principle. It said that any time that technology has both infringing and non-infringing applications, you don't have to look to the intent of the manufacturer. You don't have to look to the intent of someone who sells this product. All you have to do is examine whether or not there are substantial non-infringing applications.

I think the (inaudible words). That is sufficient to find this to be lawful technology. Now that remained the law up until the time of the DMCA. But the DMCA effectively reverses that. And it says that the test is now going to be whether or not the manufacturer primarily intended that the device be put to an infringing purpose. Now, how is a manufacturer going to know when he is creating a product, that, considering putting that product onto the market, how a court many years removed is going to evaluate his intent. Is it going to be based on how the technology is going to be used? Are they going to introduce evidence of how people utilized this technology. The manufacturer could have the best of intent -- intent that it be used to facilitate a fair use applications. But, if his technology could predominantly be used for an infringing purpose -- and so, he might be at risk of having the same thing happen to him that has happened to Elcomsoft. And the result is that the manufacturer is going to be very reluctant to put that technology on the market. We are already seeing, as a result of Elcomsoft, a lot of foreign equipment, manufacturers, scientists, people who could enrich the dialogue here in the United States, avoid the United States. They are not coming here because they are worried that if they talk about their innovation, they are going to be deemed to be trafficking in a circumvention device. It is a big problem.

Also, under these provisions, Professor Felton accepted the invitation of the people who had created an encryption technology, and invited people to come and see if they could break this technology. Professor Felton accepted that invitation, and he was successful in finding the weaknesses and the holes in this technology. He was able to determine that it was not secure at all. And, he then wanted to publish the results of research would inform anyone who might consider using that technology, that it was not secure, and that it was subject to (problems?). He soon found that if he did that he could be prosecuted for trafficking in a circumvention device, notwithstanding that he had accepted the invitation of the very people who created this technology, who (inaudible phrase). You know, any time a law punishing somebody trying to speak like that, we have got a basic problem. And the Felton case points that out in very stark relief.

Editor's Note: See, S 2048, the Consumer Broadband and Digital Television Promotion Act, introduced by Sen. Ernest Hollings (D-SC) and others on on March 21, 2002.

I am going to talk in a minute or so about what we ought to do about this. But, before I do, let me suggest one other thing that troubles me a great deal, and that is the introduction in the Senate of a bill that would serve broadly to restrict fair use rights. But, it would do a number of other things. It would require that all digital receivers, recorders, and players come equipped with a technology standard that would enable that device to respond to content that contains this government technology standard. Only that content could be played on the device. There is no assurance that even if the device works, which is subject to question, you would be able to convey that content to multiple devices around the home. There is nothing in the legislation to assure that. You  have to make individual copies whenever that happens, and this bill basically allows one copy to be made. So, the device wouldn't allow the portability of content to be lawfully acquired for devices within the home.

The legislation is unnecessary. And, let me just say that it is not going anywhere. Senator Leahy, who has jurisdiction over this matter in his Judiciary Committee, has already said that the bill is not going to pass. And so, we can put our minds at ease that this particular measure is not going to pass, at least for now. But it does bespeak an intent on the part of those who suggested its introduction that technology be saddled with measures that would broadly inhibit what we have all come to understand as basic fair use rights.

You know, there is another major problem with this bill. That is, it would, at the end of the process, have the government establish a standard for protection. And, I will say that I think the government does a number of things very well. But, establishing technical standards for commercial products is not among them. And I seriously doubt that we would find this technology to be workable, and undoubtedly, would carry with them a lot of dysfunctionality for many of the appliances for which it is (inaudible word).

I think what this legislation did was create a huge backlash. You know. It got a lot of attention. When Senator Hollings introduced the bill, it was the subject of major stories in all of the significant publications around our country. It was carried in the trade press. But it was also in the New York Times, and the Washington Post, and the LA Times, and it was all over the networks. When he had his hearing it was the lead story on many of television programs. And, I think what it did was create a backlash in the country. All of a sudden, people woke up to the very real possibility that Congress might be planning to inhibit digital technology. And, people who are using the Internet, and who have digital technology in their homes, saw a threat to the continued ability to use those products in a convenient way.

The is an organization now called digitalconsumer.org which is founded by the former founder of Excite, Joe Kraus, and within a mere two months of this organization's existence, just through e-mail, and through conversations in chat rooms, about the threats that currently exist, to fair use rights, and consumer rights generally, digitalconsumer.org has now signed up more than forty thousand individuals. And these are individuals who can be part of a grass roots effort to create some useful rebalancing and changes in copyright law. I think that, to some significant extent, the introduction of the bill in the Senate contributed to the early success of digitalconsumer.org.

I think that it is time that Congress re-examine the DMCA. And, within the next several weeks, I am going to be introducing a bill that will achieve that purpose.

I am going to need your help, and your support, in order to pass it. I need your advice in order to make sure that we are hitting the nail exactly on the head. And there is a lot of discussion about what ought to be done now in order to reaffirm fair use rights. This bill is going to take a fairly surgical approach. It is going to say that it is not criminal conduct under any circumstance to be active in furtherance of fair use rights. It is going to amend the DMCA to address what I think are the largest problems with that legislation. And, that is, that the DMCA criminalizes conduct that is harmless, doesn't infringe copyright, and broadly restricts the rights of users. What we are going to do is reverse that, and say that if you are acting in furtherance of fair use rights, you are not in violation of the (inaudible word) DMCA. It is a fairly surgical approach to addressing a real problem.

We are probably also going to be working with a lot of interested parties and organizations, including perhaps many who are here in this room today. In order to structure a somewhat broader measure, that would create an affirmative right of fair use, and say that individuals have this basic right, extended by the virtue of federal law. A lawyer would say that we are really doing is shifting the burden of proof, one way or the other. But, that burden of proof is important. It is better to have to make whoever is prosecuting or suing you, establish as a part of the case in chief, that you are not exercising a fair use right, than for you to have to offer fair use as a defense. Lawyers will appreciate the difference.

And so I think it is important to do both things. And, we are now proceeding on two tracks to have a short term remedy I hope we can pass in the near term that will specifically amend the DMCA to ensure that fair use is a defense to any action along the lines I previously discussed. And then this broader strategy that would create a kind of a consumers' bill of rights, and clearly establish fair use as a fundamental American right (in the country?). They are both worthwhile goals, and we are going to need your help if we are going to succeed in this effort.

Why do I think the situation is different. You know, I offered these amendments in 1998 when the DMCA was first debated. I didn't get much support. What has changed? I think a lot has changed. In the years since the DMCA was adopted, we have had the growth of a number of organizations that are dedicated to the rights of people to introduce interesting new digital technologies, and the right of people to use that technology. The Digital Media Association did not exist when we adopted the DMCA. Now it does. And, it is very effective. Digitalconsumer.org, which I just mentioned, with 40,000 members within two months of its existence, and no advertising. Libraries and universities who were part of our effort in 1998, but were really not well organized in order to protect their fair use rights are now terrifically well organized and dedicated to effort that we are about to launch.

Major technology companies, including Intel, and others, have strongly spoken out in support of the need to change the law, and make sure that consumers have all of the rights necessary to enjoy digital media within the home. And, of course, that benefits the technology companies who want to sell the products to these individuals. I expect many other major technology companies to support this effort as well. And then, of course, we have forums like this, which did not exist in 1998. We were not having this conversation on a broad basis four years ago. Today we are. I have had the privilege of addressing a number of different groups on this subject, just within the course of the last few months.

And, I commend you for you interests. I commend you for your commitment to make sure that the public commons of information is sufficiently large. Thank you for this focus. And, help us out. After we introduce our bill, if you could contact your Member of Congress, and tell them that we are on the right track, and this approach is sensible, and is in the public interest. Encourage them to cosponsor our bill. Encourage them to support it. That will be a tremendous benefit. Encourage the organizers of this forum to make this, perhaps, an annual event, and to continue the very important focus that you are launching here today. And the next time you come, bring some friends with you, so that we have this full room that attended today. But, perhaps next time we will have to have a larger hall in order to accommodate the number of people showing interest in this subject. These are all positive steps that we can take. I want to congratulate you for your interest in this. Working together, I think we can create a fundamental change, and ensure a larger public commons of information upon which our society continues to rest. Thank you very much.