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Committed to the First Amendment 10/06/2002 08:00:00 PM Eastern

You copy?

Boston-based consulting firm Viant estimates that 400,000 to 600,000 movies are illegally downloaded every day. Despite record box-office takes, Hollywood is frightened by those figures, as it should be. That's why MPAA was quick to criticize a pair of bills introduced in the House last week that, by undoing some of the copy-protection provisions of the Digital Millennium Copyright Act (DMCA), would make it easier for pirates to plunder the digital seas.

While the bills probably aren't going anywhere, that didn't keep the e-mails from flying last week, with CEA praising the bills and MPAA hoping to bury them.

Protecting fair use while preventing unfair use is a tough job, but the DMCA already provides for fair-use copying of digital material, so we will have to side with MPAA regarding the more wide-ranging of the two bills, which was offered by Rep. Zoe Lofgren (D-Calif.). We'll save Rick Boucher's bill for another day.

Lofgren's bill strikes us as an unnecessary, inequitable entitlement program with language broad enough to drive a truckful of pirated CDs through.

Unnecessary because it "clarifies" that fair use applies to digital as well as analog transmissions, even though no one is disputing that and technological neutrality is already a given in the DMCA.

Inequitable because its prohibition of "non-negotiable, shrink-wrap licenses" (the familiar "click if you accept these terms") conveniently excludes computer software, the bread-and-butter of Lofgren's Silicon Valley constituents, not to mention the intellectual-property category that pioneered such licenses.

Overbroad, finally, because it refers to protecting not only rights but "expectations," an extension of fair use whose end is nowhere in sight and whose interpretation is anybody's guess.

Statistical reading

The FCC's ownership studies came out last week. They arrived in the hundreds of pages, some filled with the sorts of equations that made us choose journalism over, say, statistical analysis when meeting with guidance counselors. There appears to be fodder for both sides, but there's evidence of a definite pro-dereg lean.

We don't say this often, but we have to agree with Commissioner Michael Copps that these "bare-bones" studies should not provide the sole underpinning for commission action, although they should make for interesting reading and prompt lively debate between now and April.

Stay tuned.

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