The House Subcommittee on Commerce, Trade, and Consumer Protection began a series of hearings Wednesday to try and come up with a scheme for balancing fair use and copyright protection in the digital age.
It is one of the key issues for content providers going forward, and one that the industry has been unable to come to agreement on.
Central to the hearing was H.R. 1201, a bill that would amend the Digital Millennium Copyright Act to allow content protections to be bypassed for fair use copying. Currently it is illegal to do so, which means that a DVD cannot be copied for personal use at, say a beach house, or for downloading to a video iPod. Subcommittee Chairman Cliff Stearns (R-Fla.) called that fair use "lockout" a perversion of the law.
Stearns told the witnesses at the hearing that the best way to avoid legislation was to come up with a digital rights management solution on their own. He said a technological fix, say, a device that would allow only limited fair-use copying, was the best way to go.
When asked if that were possible, Consumer Electronics Association President Gary Shapiro said yes, but that it was not foolproof. One thing about building better mousetraps he said, was that you get smarter mice.
And mice are a key issue. Mary Bono (R-Calif.), for one, was worried that computer users would wind up clicking and dragging away copyright protection for artist's work. The widow of Sonny Bono, she is a copyright holder herself.
The issue crosses party lines.
House Commerce Committee Chairman Joe Barton (R-Tex.) favors the bill, saying it closes a loophole in the law that prevents legal copying for personal use.
Barton made it clear he was not supporting piracy, saying the cutlasses and cannons of yesterday's buccaneers had been replaced by the computers and pocket protectors of today. But he saw it as a property rights issue and said he was concerned that consumer's legal options will be limited. "I believe when I buy a DVD or album, it is mine when I leave the store. Does that mean I have unlimited rights? No," he said, "but the law should not restrict fair use rights of my own property."
Bono disagreed, saying allowing content protection to be bypassed would gut digital rights protections. Agreeing with Bono was Republican Marsha Blackburn from Tennessee, home of the country music recording industry. "You call it fair use. I call it theft," she said.
Like Stearns, Barton urged the marketplace to work out a solution, and said he did not understand why a compromise couldn't be reached.
Mike Ross (D-Ark) saw one of the problems in enforcing copyrights as the change in who was doing the infringing. The battle used to be between the copyright holder and the middleman, he said, but digital distribution has cut out that middleman, making it more challenging.
Rick Boucher (D-Va.), who has motormanned H.R. 1201, pointed to the fact that his bill continued to make bypassing content protection for the purpose of infringing illegal, and only allowed it for personal use copying, which was established in the 1976 Copyright Act and upheld in the Betamax case.