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CNET Interviews Rep. Boucher
Eliot Van Buskirk writes "I interviewed Congressman Rick Boucher about the DMCA, copy-protected CDs, free speech, and the effects of RIAA/MPAA lobbying both in the U.S. and abroad. The transcript is available in the MP3 Insider column, and also as a downloadable MP3 , available under the EFF's Open Audio License, meaning that you can put it in your file sharing directory's upload folder completely legally. This is sort of an experiment. Boucher might be the leading defender in Washington of our right to Fair Use, so I figure it makes sense for the interview to spread around the P2P networks." Boucher's one of the smart ones.
Interview with a congressman--part one (continued)
...which is ironic because it's called the promotion of broadband and digital television, promotion of sales [Editor's note: The law is actually called the Consumer Broadband and Digital Television Promotion Act], it seems to me that the exact opposite is true.
B: Well, the Sony vs. Betamax decision is a very valuable decision. It was rendered 20 years ago. To a large extent it was reversed by the DMCA. What the Sony vs. Betamax decision held is that any time technology can be used for two purposes--a minimum of two, but two anyway, one of which is infringing, and another
I have very serious problems with punishing the technology. And that is precisely what the DMCA seeks to do.
of which is noninfringing, that the technology is lawful technology as long as it has a substantial noninfringing use. And the court analyzed the Betamax and found that because it allowed time-shifting, it had a substantial noninfringing use (time-shifting is fair use), and therefore Betamax was found to be lawful technology. That's a very valuable legal principle: The presence of a substantial noninfringing use renders the technology to be lawful. Now unfortunately, the DMCA essentially reversed that, because it says that if the technology, even though it has substantial noninfringing uses, was primarily intended by the manufacturer to be used for an infringing purpose, then the technology is unlawful. Now the problem is, nobody's going to know at the outset what a court is going to rule about the intent of the manufacturer. How do you determine that extent? How does a court subsequently determine what was in the manufacturer's mind at the time that he produced technology that could be used both for infringement and also had noninfringing purposes? And so the Sony vs. Betamax principle was severely weakened by that provision of the DMCA. And then, of course, anybody who traffics in a device which is declared to be an infringing technology--such as Mr. Sklyarov from Russia--can be arrested for criminal conduct.
M: Right.
B: And I have very serious problems with punishing the technology. And that is precisely what the DMCA seeks to do. We should punish people who engage in acts of piracy. We should not punish the technology which can be used for infringing purposes but also for substantial noninfringing purposes.
M: So along those lines, I just came across a very interesting quote from John Ippolito of the Guggenheim, and he's talking about Senator "Fritz" Hollings's bill, the CBDTPA, and Ippolito says about that bill, "To disable the Internet to save EMI and Disney is the moral equivalent of burning down the library of Alexandria to ensure the livelihood of monastic scribes."
B: (laughs) Well, it's artful...(laughs) Well, without being quite that eloquent, let me endorse the general idea that he expresses. I think that Senator Hollings's bill is wrongheaded. It is inappropriate for the government to establish technical standards to be applied to digital media. The government is not a very good standards-developing body.
M: Mmm-hmm.
B: I do agree that we need to take some steps to assure that material which is, for example, broadcast across digital-television equipment should be protected in such a way as to disallow unauthorized copying and disallow uploading to the Internet. I actually endorse the idea of doing that. But I think that should be done in a collaborative process that involves the manufacturers of equipment and also involves the motion-
It is inappropriate for the government to establish technical standards to be applied to digital media. The government is not a very good standards-developing body.
picture studios. And that very process is underway. That group has already achieved an agreement that will protect television content--broadcast and digital format--and received in the home by either cable television or by satellite. What they have not achieved is an agreement in regard to material that is broadcast over the air for receipt by an antenna or by "rabbit ears." But they're working to do that, and we expect that within another six weeks there will be a private-sector agreement that produces a standard for protecting that content as well. Now, at the end of that process, after the equipment manufacturers are satisfied that the standard is workable, after the motion-picture studios are satisfied that it offers sufficient protection, after the various consumer groups that are also working in this process are content that the employment of that standard will enable people to continue to exercise their fair-use rights for appropriate home recording of the material--after all of those tests are met, there may be a role for Congress to require that equipment respond to that particular standard, and all of the external stakeholders will have endorsed the standard and say that this technology works, and that consumer rights are protected. Now, at that point, I would be willing to entertain a proposal that Congress act and require that equipment respond. The Senator Hollings's bill is way ahead of all of that. Senator Hollings's bill would require that all digital media immediately respond to a standard that the government would wind up setting. There would be no assurance that consumer rights would be protected. There would be no assurance that the fair-use right to home recording of digital content would be preserved. There would be no assurance that the technology as applied to consumer-electronics products and information-technology products would allow those products to function effectively. And I'm convinced that if his bill becomes law, which I don't think it will, but if it were to become law, I think it would probably inhibit the introduction of a lot of useful new technology.
M: Exactly. I mean it seems to me that in fact it would incent people to buy used computer equipment from before the legislation were enacted...
B: Absolutely.
M:
B: I think that's right.
M: Right. OK, so since the Internet is international, then there's the aspect of will the DMCA become the basis for worldwide copyright law, and do you think that's realistic?
B: Well, that's a big problem. You put your finger on a major concern there.
Note: Check back in two weeks for the second half of the MP3 Insider's interview with Rep. Boucher.
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Uploading something to the Internet is not in the privacy of your own home. Last I checked, the Internet is not confined to your house.
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you can send him email at Ninthnet@mail.house.gov or you can contact him via phone or mail at:
188 East Main Street
Abingdon, Virginia 24210
276-628-1145
112 North Washington Avenue
Pulaski, Virginia 24301
540-980-4310
1 Cloverleaf Square, Suite C-1
Big Stone Gap, Virginia 24219
276-523-5450
2187 Rayburn House Office Building
Washington, D.C. 20515
202-225-3861
finally, you can visit his web site at http://www.house.gov/boucher
http://www.house.gov/writerep/ - A form to find out who your representatives are.
http://www.house.gov/house/MemberWWW_by_State.htm - U.S. Representatives by State
http://www.house.gov/house/MemberWWW.html - Representative's Websites