Statement by Rep. Rick Boucher (D-VA). Re: HR 1201, the "Digital Media Consumers' Rights Act of 2005". Date: November 16, 2005. Editor's Notes:  • TLJ interviewed Rep. Boucher.  • This statement is transcribed from an audio recording.  • TLJ has added hyperlinks.

There is an obvious need for it. There are many things that the purchaser of digital media needs to do with that media that today are made unlawful by the Digital Millennium Copyright Act, although those acts are totally lawful under the copyright law, for example, making an archival copy of a CD that you buy at the store that has a copy protection regime attached to it, so that if you suffer from digital rot, as can happen (I have got a couple of CDs now that have become rotten over time) that you would have that media, and wouldn't have to go buy another copy of it.

There are a lot of activities that a person ought to be able to undertake to fully enjoy, in a lawful way, the content that he or she purchases, that today for technical reasons, and the force of law put behind the technical protection, that person can't do.

So what I am simply trying to do is amend the law to say that a person can bypass the technical protection if they are doing so for a lawful purpose, in the exercise of a fair use right, or other legally protected right. And I think that is a very modest and very miner modification of the law which should be made.

It would do nothing to encourage piracy. If a person bypasses for an unlawful end, that act would be just as illegal under my bill as its is under current law. So this would do nothing to encourage piracy. It would do everything to rebalance the rights of the content owner versus the rights of digital media who pays fair value for it. And, we need to have balance in our law.

The hearing that is taking place downstairs today is making the same case that I am making, that fair use is critically important, that the law has become unbalanced to the detriment of fair use, and that it needs to be rebalanced.

The question really at this point is, can we get a markup of the bill. And, at the moment, we do not have one scheduled. We have said, Joe Barton has said, I have said, to the Motion Picture Association, that if it wants to have a broadcast flag authorized for action by the FCC, that it will need to do that within the context of establishing fair use rights for the purchasers of digital media. And so, the ball at the moment is really in the court of the Motion Picture Association. We are basically waiting for the MPAA to make a decision about whether having the broadcast flag is important enough for them to acknowledge the rights of the purchasers of digital media, and allow fair use rights to continue to thrive. And, we don't have an answer to that yet.