06 January 2006

Copyright Legislation Update

About three weeks ago, two rather ridiculous bills were introduced to amend the Copyright Act (17 U.S.C.). Both are related to copy protection and digital rights management; and, of course, they're wildly contradictory.

On the one hand, my unfavorite copyright legislator—the Hon. Zoë Lofgren, who represents Silicon Valley—has come through with another appears-to-be-industry-lobbyist-drafted monstrosity. H.R. 4536 is captioned "to safeguard the rights and expectations of consumers who lawfully obtain digital entertainment." That's not an unreasonable goal. It sort of falls off the wagon in the actual text, though. Things don't start well when the proposed factual predicates misstate the law.

(7) Contrary to the intent of Congress, section 1201 of title 17, United States Code, has been interpreted to prohibit all users—even lawful ones—from circumventing technical restrictions for any reason. As a result, the lawful consumer cannot legally circumvent technological restrictions, even if he or she is simply trying to exercise a fair use or to utilize the work on a different digital media device. See, e.g., Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 321-24 (S.D.N.Y. 2000) (DMCA failed to give consumers the technical means to make fair uses of encrypted copyrighted works).

(8) The authors of the DMCA never intended to create such a dramatic shift in the balance. As the report of the Committee of the Judiciary of the House of Representatives accompanying the DMCA stated: `[A]n individual [should] not be able to circumvent in order to gain unauthorized access to a work, but [should] be able to do so in order to make fair use of a work which he or she has acquired lawfully.' House Report 105-551, Part I, Section-by-Section Analysis of section 1201(a)(1).

H.R. 4536 § 2. First, that interpretation of Reimerdes is at minimum hyperbolic; that very well may have appeared to be the ultimate effect of the opinion, but it is not what either the cited passage or the opinion as a whole holds. Second, House Report 105-551 concerns a draft of the DMCA that was not adopted; the corresponding commentary in both the Senate and the post-conference-committee reports essentially drops the reference to fair use. Cf. H. Rep. 105-796 at 65; S. Rep. 105-190 at 28-30. The meat of the bill—and the real damage, and really sloppy drafting—appear in the proposed new § 123.

(a) Use of Lawfully Obtained Digital Works— Notwithstanding the provisions of section 106, it is not an infringement of copyright for a person who lawfully obtains a copy or phonorecord of a digital work, or who lawfully receives a transmission of a digital work, to reproduce, store, adapt, or access the digital work—
   (1) for archival purposes, if all such archival copies are destroyed or rendered permanently inaccessible in the event that continued possession of the work should cease to be rightful; and
   (2) in order to perform or display the work, or an adaptation of the work, on a digital media device, if the work is not so performed or displayed publicly.

This presents two obvious problems. First, "lawfully obtains" includes "by loan;" whether "continued possession" would be unlawful for a library patron, who lawfully may continue to loan the item, is a rather good question to throw on a final exam, and the question of whether a video rental store patron (or Netflix customer) could do the same is even more interesting, at least on this sloppy drafting. Second, consider the problems of OCR and redistribution based on a "facsimile edition" of graphical images of, say, National Geographic. <SARCASM> Gee, you don't think that could ever happen, do you? </SARCASM>

Then there's H.R. 4569, introduced a couple of days later by the Hon. James Sensenbrenner (another of my "favorite" legislators, but for entirely different reasons). This bill runs precisely the opposite direction of 4536, as it would prohibit use of analog conversion devices (and, presumably, programs) that strip DRM protections from digital media. In short, this would extend the ill-conceived "broadcast flag" to analog devices and digital-to-analog converters that make it possible to watch digital broadcasts on older TV sets or via VCRs. Worse, it is technology-specific. Leaving aside for the moment that this kind of legislation is more properly left to administrative rule-making—if there is one body of persons on the face of this planet least likely to adequately and properly (or even intelligently) evaluate technological options and standards, it is the United States House of Representatives—it is rather disingenuous (at best) to use a boatload of acronyms in the text of the bill and bury the critical definitions on page 21.

Bad writing masking bad thinking. Now there's something you don't see every day. Wait a minute—I guess I do.