Bill would 'protect' consumers from DMCA

Effort seen as uphill fight in Congress

A congresswoman from Silicon Valley is hoping to "protect" consumers of digital content from the U.S. Digital Millennium Copyright Act (DMCA) by introducing a bill that spells out what kinds of copies they are allowed to make.

Representative Zoe Lofgren, a Democrat from San Jose, Calif., on Tuesday reintroduced a bill she authored in late 2002. But some of her big-business neighbors in the Business Software Alliance, and her cross-state neighbors at the Motion Picture Association of America, immediately opposed her efforts.

Lofgren's office acknowledged that passage of her bill would be an uphill fight in the U.S. Congress. The last version of the bill didn't get a hearing before Congress adjourned for the winter holidays. A spokesman for Lofgren said the bill's chances may depend on what anticopying initiatives the entertainment industry takes in Congress.

"I think our chances for a hearing are better than the ultimate chances for passage," the spokesman said. "Only time will tell."

The spokesman admitted that those in Congress pushing for consumer-rights changes to the DMCA were in the minority, but bills like Lofgren's raise awareness of the consumer issue. "It is now part of the debate, and people know about it," the spokesman said. "Consumers need a voice. This is not just a technology versus Hollywood fight."

Lofgren's bill, renamed the Benefit Authors without Limiting Advancement or Net Consumer Expectations, or BALANCE Act, would clarify consumer rights under the much-protested DMCA, passed in 1998. The bill would allow buyers to make backup copies and display digital works on devices of their choice. It would also prohibit non-negotiable, "shrink-wrap" licenses on digital content that "limit consumer rights," according to Lofgren's office, and it would allow consumers to bypass copy protection technologies if those technologies "impede" their fair-use rights under copyright law.

One of the most controversial sections of the DMCA outlaws most attempts to circumvent copy controls on digital content. Several companies have used the DMCA to stop programmers from creating copying software or competitors from creating products that interact with their own products.

"There is wide agreement to fight piracy, and it is something that needs to be stopped," Lofgren said in a statement. "But individual consumers are being denied their legitimate rights in the digital age. We can solve this problem, but lawsuits and locking down content are not the solutions."

Backers of the DMCA, including the Recording Industry Association of America Inc. (RIAA) and the Motion Picture Association of America (MPAA), say the law is needed to protect digital content from piracy. The RIAA said it would have no comment on Lofgren's bill.

Jack Valenti, president and chief executive officer of the MPAA, said in an e-mail statement that Lofgren's bill would "put a dagger in the heart" of the DMCA.

"As drafted, this legislation essentially legalizes hacking," Valenti said. "It would deny content owners the ability to protect their works by technological means. This means that millions of movies could be illegally downloaded without penalty and without fear."

The Business Software Alliance (BSA), representing tech giants such as IBM Corp., Cisco Systems Inc. and Microsoft Corp., also said it had "critical reservations" about Lofgren's approach and the changes to copyright law the BALANCE Act would make.

BSA president and chief executive officer Robert Holleyman, said in a statement that Lofgren's bill would "undermine the core purpose of the (DMCA) and violate the protections that serve as the foundation of innovation and discovery for legitimate copyright owners."

The group is "deeply troubled" over the bill's attempts to change shrink-wrap license agreements, he added. "The bill would make a broad array of licensing terms unenforceable under statutory and common law," Holleyman said. "While the specific provisions do not apply to software, they apply to the types of licenses now common in our industry, and thus would send the wrong signal."

Lofgren's bill is similar in some ways to a bill introduced in January by Representative Rick Boucher, a Democrat from Virginia. Boucher and Lofgren have cosponsored each other's bills and are targeting their bills at different House committees. The bills have different definitions of the legal uses of copyrighted content, and Boucher's bill requires copy-projected CDs to be labeled, while Lofgren's does not.

Copyright © 2003 IDG Communications, Inc.

How to choose a low-code development platform