Congressman Rick Boucher (D-VA), along with Representatives John Doolittle (R-CA), Spencer Bachus (R-AL) and Patrick Kennedy (D-RI), introduced the Digital Media Consumers’ Rights Act of 2003 (H.R. 107, or “DMCRA”), which would, among other things, make it no longer unlawful to circumvent access control technologies for the purpose of making lawful (noninfringing) use of a work protected by copyright.  This is just common sense.  We make it a crime to break into cars, but we don’t criminalize breaking into your own car when you locked the keys inside.  And even in the case of criminals, we’ve never found any valid reason for letting an automobile manufacturer sue people for breaking into cars the manufacturer no longer owns.  Why should record companies and movie studios be allowed to sue people for breaking into their own music and film collections?  This was certainly an unintended side effect of the DMCA.

This amendment is long overdue.  It protects the DMCA from potential invalidation, it brings the DMCA in line with our treaty obligations, it creates a powerful incentive for copyright holders to use technological access controls for lawful purposes only, and it protects the rights of the least advantaged.

Opponents of H.R. 107 claim that the DMCRA would weaken, undermine, gut, eviscerate, or otherwise wreak havoc with the DMCA – that the exception would swallow the rule.  They are only kidding themselves – Congress should know better.

1.      The DMCRA strengthens the DMCA.  Many legal authorities have already questioned the legality of the DMCA.  At a minimum, there are questions whether Congress has the constitutional authority to empower private companies to control property they do not own, where no copyright interest is at stake.  Where the DMCA is being abused to prevent people from gaining access to lawfully made copies of works that they have lawfully acquired, it offends basic principles of justice.  The mere fact that the DMCA is being used to pirate away rights Congress has reserved to the public demands corrective action by the courts.  By authorizing people to circumvent such abusive access control technologies that prevent noninfringing use of works, Congress would reduce the risk that the entire system might crumble under a legal challenge.

2.      The DMCRA relieves public pressure to reopen the DMCA.   The principal driver for the DMCA was to comply with international treaties which require the parties to provide protection against circumvention of technological measures to gain access that is not (a) authorized by the copyright holder or (b) authorized by law.  At the urging of powerful copyright holding companies, the DMCA went much further than necessary to comply with such treaty obligations, and completely omitted the WIPO treaty “safety valve” for lawful, non-infringing uses “authorized by law,” even if not authorized by the copyright owner.  The DMCRA would make the DMCA consistent with the international uniform plan envisioned in the WIPO treaties, and prevent Americans from becoming second class world citizens when it comes to accessing works of authorship.

3.      The DMCRA creates a powerful incentive for wayward copyright holders to confine their controls to their copyrights.  Opponents of the DMCRA argue that if we allow circumvention to make noninfringing use, it will make it easier to circumvent the same technologies for infringing use.  This argument ignores the obvious:  If copyright holders limit their technologies to the prevention of infringing use, then no one will need to “pick the lock” in order to make noninfringing use.  Consider timed-out copied, for example.  It is never infringement to listen to a sound recording an infinite number of times.  It is never infringement to rent lawfully made copies infinite times.  An access control technology that times out a lawfully made copy so that the lawful owner or lawful renter of that copy has to pay the copyright holder to gain access is the same as a technology allowing copyright holders to charge a toll to cross the Brooklyn Bridge.  It is ludicrous for the illicit toll-collector to argue that if people can learn how to cross the Brooklyn Bridge without paying the illicit toll, then legitimate toll collectors will be at risk.

4.      The DMCRA helps ensure access by the least advantaged.  By misusing the DMCA to facilitate the use of access control technology that hinders perfectly lawful uses, the DMCA threatens to disenfranchise millions of Americans who, for no fault of their own, must rely upon the generosity and entrepreneurial spirit of others for their own access to creative works.  Anyone who has ever read a book they did not buy, listened to a song without paying for the privilege to do so, or seen a movie on a VHS tape or DVD that someone had already watched, or chose to rent the movie instead taking the family to the theater due to cost considerations, can understand just how important it is to preserve trade and commerce in lawfully made copies and phonorecords.  The Copyright Act has always left ample room for transactions – doubtless billions a day – in which Americans gained access to copyrighted works lawfully, but without having to pay a penny to the copyright holder.  Consider used book sales, library lending, trading or borrowing among friends, video rentals, eBay sales, used copies, gifts, donations to charitable organizations – you name it.  Creativity has not suffered in the least from these lawful activities, yet it is these very activities that are most at risk from the burgeoning misuse of access control technologies under the cloak of DMCA darkness.  The legislative history of the DMCA makes clear that Congress never intended such a sordid result. 

To call the DMCRA as just a “fair use” bill does it a disservice.  None of the uses described above constitute “fair use” under the Copyright Act.  Why?  Because none are infringing in the first place.  “Fair use” is a concept designed to deal with uses that are, technically, infringing, but which must nevertheless be allowed in order to preserve important public interest principles, including freedom of speech.  Every single use mentioned above, in contrast, is not infringing at all, so “fair use” does not even come into play.

* John T. Mitchell is an attorney practicing in Washington, DC.  These comments are his alone, and may not reflect the views of any of his clients.  He may be contact at John@InteractionLaw.com, or through his website, http://interactionlaw.com.