Reps. Boucher and Doolittle Introduce Digital Media Consumer Rights Act

October 3, 2002. Rep. Rick Boucher (D-VA) and Rep. John Doolittle (R-CA) introduced the Digital Media Consumers’ Rights Act of 2002. Rep. Boucher gave a lengthy speech at an event to announce the introduction of the bill. He stated that the bill would "reaffirm and reinforce the Fair Use doctrine in this digital era."

Rep. Boucher (at right) summed up the problem that the bill addresses. He said that "The Fair Use doctrine is threatened today as never before. Historically, the nation’s copyright laws have reflected a carefully calibrated balance between the rights of copyright owners and the rights of the users of copyrighted material as reflected in the Fair Use doctrine. The Digital Millennium Copyright Act of 1998 (DMCA) dramatically tilted the copyright balance toward complete copyright protection. The 1998 law enables the copyright owner to enshroud his material with a technological protection measure and then makes it a civil wrong and a potential federal felony for anyone to circumvent the technical measure for any purpose. Even people who have purchased and paid for copyrighted material would be liable if they bypass the technical protection for the purpose of making Fair Use of the work they have lawfully acquired."

He continued that "The Digital Millennium Copyright Act of 1998 places the force of law behind the technical barriers put in place by copyright owners. We have no quarrel with a law which prohibits circumvention of a technological protection measure for the purpose of infringing the copyright. We have a huge quarrel with the current law which punishes circumvention to make Fair Use -- or any non-infringing use -- of copyrighted material.

"Accordingly," said Rep. Boucher, "the bill we are introducing today will amend Section 1201 of the DMCA to provide that the only time the act of circumvention is prohibited when the purpose of the circumvention is to infringe the copyright in the work. Circumvention for Fair Use purposes will no longer be penalized when our bill is enacted into law."

Rep. Boucher has long been active on IPR, tech and telecom issues. Rep. Doolittle (at right), in contrast, has not heretofore been a leader in these areas. He is a conservative Republican who was first elected to Congress in 1990. He now sits on the Appropriations Committee. His 4th District lies to the West of Sacramento. While it includes much of the Sierra Nevada range, including Yosemite National Park, it is also home to the facilities and employees of some tech companies located in the Sacramento area. Two of the leading employers in his district are Hewlett Packard and Intel.

Intel sent a representative to the press conference to speak in support of the bill. So did Gateway. Sun Microsystems did not have a representative speak. However, it wrote a letter expressing its support.

The bill also enjoys support in the telecommunications industry. Verizon announced its support at the event.

The bill also has the support, as has long been the case, of companies that make the devices that consumers can use to store and play back digitally recorded music. Representatives of both the Consumer Electronics Association and Phillips Electronics spoke at the press conference.

Finally, the bill is supported by traditional proponents of broad fair use rights, including library groups, the Consumers Union, and the newly formed group named Public Knowledge.

Rep. Boucher predicted that "we inevitably are going to prevail", but he did not say when. Since the current Congress is about to end, he stated that the bill will be reintroduced in the next Congress.

Boucher said that the bill "borrows the Betamax standard, and applies it to the provisions in the DMCA that apply to circumvention devices. And that is really all it does. That is an important change to make."

Rep. Boucher has advocated many changes to fair use under copyright law in the last few years. See, for example, his speech of March 6, 2001. This bill, however, does not address all of his concerns.

For example, this bill does not deal with peer to peer networks. Boucher stated that "this legislation is designed to address circumvention devices, and really, is drafted in such a way as is limited to circumvention devices. And, peer to peer file sharing architectures are really not circumvention devices."

However, he added that "I have my own views about the value of peer to peer networks for non-infringing purposes. And they are applicable to many non-infringing purposes, and I think, a valuable addition to the Internet architecture. And, I support the expansion of peer to peer networks, consistent with sound copyright principles. But, that is a debate beyond the scope of this bill."

Boucher predicted that record companies, movie companies and book publishers "will oppose the passage of this legislation."

Summary of the Digital Media Consumer Rights Act

The Digital Media Consumers’ Rights Act of 2002 would do two things. First, it would  require that certain information be placed on the labels of music discs, and that a violation would constitute an unfair or deceptive trade practice within the meaning of the Federal Trade Commission Act. Second, and more importantly, the bill would roll back the anti- circumvention provisions of the Digital Millennium Copyright Act (DMCA). Specifically, it would create fair use exceptions to the bans on circumvention of technological measures to protect copyrighted works.

Anti Circumvention and Fair Use. The Boucher Doolittle bill would make two changes to the DMCA's anti- circumvention provisions. First, it would provide an exception for scientific research into technological protection measures. Second, the key language of the bill would create a fair use exception to the DMCA's bans on circumvention.

Currently, § 1201(a)(1)(A) of the Copyright Act, which was added in 1998 by the DMCA, provides that "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Then, § 1201(a)(2)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;"

Furthermore, § 1201(b)(1)(A) provides that "No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that --- (A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof;"

The Boucher Doolittle bill would add to both of these sections an exception for scientific research. Specifically, the bill provides that "Subsections (a)(2)(A) and (b)(1)(A) ... are each amended by inserting after ‘‘title’’ in subsection (a)(2)(A) and after ‘‘thereof’’ in subsection (b)(1)(A) the following: ‘‘unless the person is acting solely in furtherance of scientific research into technological protection measures’’."

Perhaps, this could be called the Professor Edward Felton exception.

Then, there is the critical part of the bill. Currently, § (c)(1) provides that "Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title."

The Boucher Doolittle bill would to this sentence the following phrase: "and it is not a violation of this section to circumvent a technological measure in connection with access to, or the use of, a work if such circumvention does not result in an infringement of the copyright in the work".

Also, the bill would add to § (c) the following new subparagraph: "(5) It shall not be a violation of this title to manufacture, distribute, or make noninfringing use of a hardware or software product capable of enabling significant noninfringing use of a copyrighted work."

Neither of these two additions to § 1201(c) uses the term "fair use"; and neither references § 107, which codifies the fair use doctrine. However, the title of the subsection of the bill that contains these two additions is "FAIR USE RESTORATION".

Labeling and Unfair Trade Practices. The bill also imposes certain labeling requirements for digital music discs.

It provides that "The introduction into commerce, sale, offering for sale, or advertising for sale of a prerecorded digital music disc product which is mislabeled or falsely or deceptively advertised or invoiced, within the meaning of this section or any rules or regulations prescribed by the Commission pursuant to subsection (d), is unlawful and shall be deemed an unfair method of competition and an unfair and deceptive act or practice ..."

Next, the bill provides that "Prior to the time a prerecorded digital music disc product is sold and delivered to the ultimate consumer, it shall be unlawful to remove or mutilate, or cause or participate in the removal or mutilation of, any label required by this section or any rules or regulations prescribed by the" FTC.

And hence, the bill also gives the FTC authority to engage in rule making proceedings to promulgate rules that would, among other things, "require the proper labeling of prerecorded digital music disc products".

Moreover, the bill gives the FTC civil enforcement authority. However, the reach of this part of the bill is limited to music discs. It would not apply to e-books and movie DVDs.

Commentary: Commerce Versus Judiciary Committee Jurisdiction

The Digital Media Consumers’ Rights Act of 2002, fundamentally deals with intellectual property rights, which ordinarily falls within the jurisdiction of the House Judiciary Committee. The bill's most significant provision would create a fair use exception to the anti- circumvention provisions of the DMCA, which is part of the Copyright Act. However, the sponsors have carefully drafted their bill in a manner that gives primary jurisdiction over the bill to the House Commerce Committee.

The bill is nine pages long. It is not until the bottom of page 8 that the amendments to the anti- circumvention provision are stated. The previous pages deal with amendments to the Federal Trade Commission Act (FTCA) regarding music disc labeling, unfair trade practices under the FTCA, Federal Trade Commission (FTC) rule making proceedings, and reports by the FTC. The FTC and the FTCA fall within the jurisdiction of the Commerce Committee.

By drafting so much of the bill as amendments to the FTCA, Rep. Boucher and Rep. Doolittle seek to put this bill within the primary jurisdiction of the Commerce Committee.

Rep. Boucher spoke about jurisdiction at a press conference to announce the introduction of the bill. He stated that "the committee to which this bill is referred is the Committee on Commerce. We are standing in a Commerce Committee hearing room today. This is the Committee that will have primary jurisdiction of this bill." He added that "the Judiciary Committee will have a sequential referral of this measure when it is reported from the House Committee on Commerce. And, the Judiciary Committee, in anticipation of that sequential referral, could have hearings on this measure at any time."

He further explained that "we have written the bill in such a way as to invoke Commerce Committee jurisdiction".

There are significant strategic reasons for writing this bill to place it within the primary jurisdiction of the Commerce Committee. The two Committees are quite different in outlook. And, legislative procedures, including assignments of jurisdiction, can affect legislative outcomes. In this case, the bill is more likely to receive favorable action from the Commerce Committee than from the Judiciary Committee.

The differences between the two Committees are based on their different missions and different constituencies.

In the minds of many Judiciary Committee members, and especially its Courts, Internet and Intellectual Property (CIIP) subcommittee members, America leads the world economically and culturally because it has the most innovative and creative people and businesses. One of the main reasons Americans invent and create so prolifically is because they are rewarded for creative efforts by legal protections created by legislation written by the CIIP subcommittee. To CIIP members, its is a Constitutional mission handed down to them by the Founding Fathers. Article I, Section 8, of the Constitution provides that "Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

CIIP members tend to see it as their mission, that as new technologies and industries evolve, and as new methods for infringement appear, they must adjust the law so that the creators of intellectual property have well defined quasi property rights, and the legal recourse to adequately protect those rights. This means passing new laws, and creating new legal causes of action.

Moreover, this view tends to be reinforced by their regular interaction with an intellectual property creating constituency. It consists primarily of creators and owners of intellectual property, businesses and groups which serve the intellectual property community, the U.S. Patent and Trademark Office (USPTO), and the unions which represent USPTO workers.

There is wide consensus within this constituency that strong intellectual property laws are a good thing. These are all people who depend on the protection of intellectual property, or at least observe the catastrophic effects when intellectual property protections are lacking.

In contrast, the members of the Commerce Committee tend to see things altogether differently. They are just a patriotic, just as committed to promoting prosperity, and just as convinced that they too have a Constitutional mission. Their mission derives from Article I, Section 8, of the Constitution, which provides that "Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States ..." But, they tend to have a vastly different take on intellectual property matters.

Many of the problems that the Commerce Committee deals with on a regular basis involve monopolies and bottlenecks in the economy, burdensome regulation by government bureaucracies, and the consequences of frivolous and expensive class action lawsuits. The members tend to see their mission as promoting free enterprise, and the marketplace. They tend to see monopolies, bottlenecks, bureaucracies and litigation as drags on economic efficiency. They tend to pursue their mission, not by creating new laws, and new rights, but by ending monopolies, repealing laws, and restricting lawsuits.

Many members of the Commerce Committee view intellectual property in this light. They tend to view it as creating monopolies and bottlenecks. They tend to view the Copyright Act, and the Byzantine rules promulgated by the Copyright Office, as impenetrable bureaucratic regulation. Finally, the method by which intellectual property is enforced -- litigation -- is antithetical to many Commerce Committee members.

Moreover, the companies and groups that the Commerce Committee, and particularly its Telecom and Internet Subcommmittee, deal with on a regular basis tend to be consumers, rather than producers, of intellectual property. Telecom and Internet companies do not like paying for broadcast content, or for access databases. They do not like being subpoenaed by content companies for the alleged infringing conduct of their customers. And, they do not want to have to police the conduct of their customers to protect the intellectual property rights of others.

Hence, it is only natural for the Commerce Committee members to want to leave intellectual property protection to the marketplace, rather to create statutory rights and causes of action.

Rep. Boucher is an oddity in the House. He sits on both the Judiciary Committee and the Commerce Committee. Hence, he is acutely aware of the differences between the two Committees, and the consequences of jurisdictional decisions. By writing a bill designed to place primary jurisdiction with the Commerce Committee, Rep. Boucher seeks to have his bill reviewed and molded by the Committee that is far more sympathetic to the principles underlying his bill.