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Legislators, Academics Propose New Anti-Piracy Alternatives

13 Mar, 2003 By: Hive News

The battle between content providers and digital pirates rages on. Some legislators are proposing or reviving bills that would change the Digital Millennium Copyright Act (DMCA), while others, from industry leaders to academics, have tried and suggested various nonlegislative solutions.

Although lame duck Recording Industry Association of America (RIAA) chairman and CEO Hilary Rosen later denied it, she reportedly suggested to reporters that computer manufacturers should charge a licensing fee with each unit they sell and pass it on to the RIAA. The Reuters reporter who quoted her stood by the report from a Rosen address at a French music conference.

Though they eventually backed off, Sony and Universal both tried CD copy-prevention strategies that had consumers in the United States and abroad protesting the limited-use discs by returning them to merchants as defective.

Consumers Want to Protect Fair Use
Evidence supports consumer interest in fair use. Almost 60 percent of consumers who responded to a January survey by marketing firm SutherlandGold said Congress' top priority should be protecting consumers' fair use right to access, copy and enjoy content they acquire legally. More than 53 percent said they fear that Congressional mandates intended to limit piracy would only end up making an already complicated problem worse.

“Much has been made of Hollywood's powerful lobbying voice in the digital rights management debate,” said Lesley Gold, a managing partner at SutherlandGold. “This survey shows that the technology community could greatly benefit from waking the real sleeping giant in this debate: consumers.”

Citing the groundswell of consumer backlash against music and movie companies, Sen. Ron Wyden (D-Oregon) has suggested the answer is for content providers to prominently advertise legal uses of, and restrictions on, their materials with product labels.

Loyola Law School professor Lon Sobel has suggested Internet service providers (ISPs) like America Online, EarthLink and Juno handle charging their subscribers a fee to cover downloads. In theory such a system could work because the ISPs can monitor how much high-bandwidth activity their subscribers conduct. Typically such activity indicates large files -- like music, movies or software -- are changing hands.

The ISPs' ability to identify users who download large files is at issue in two cases the RIAA brought against ISP Verizon. Those cases use a provision of the DMCA to demand that Verizon reveal the names of high-download-volume subscribers to the organization so it can pursue legal action against the target users.

More Congressional Battles Brewing
In light of such enforcement actions, legislators are proposing or revising changes to the DMCA itself.

Rep. Zoe Lofgren (D-Calif.) reintroduced a piece of legislation March 4 called the Digital Choice and Freedom Act. It would specify that fair use applies to digital as well as analog content and would define consumers' rights to make backup copies and display digital works on the devices of their choice. It would clarify that buyers may sell or give away their copies of digital works, just like they can with traditional hard media. It would also prohibit non-negotiable shrink-wrap licenses that limit consumer rights and expectations. It would also reverse a provision of the DMCA's anti-circumvention clause, which forbids consumers to bypass technical measures that prevent media from playing on a variety of devices.

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

Meanwhile, legislators from the other side of the debate are doing CPR on their fallow bills to limit consumer uses of content. Rep. Howard L. Berman (D-Calif.) is pushing his Peer-to-Peer Piracy Prevention Act, which was introduced last session and would give copyright owners immunity from liability for impairing the “unauthorized distribution, display, performance, or reproduction” of their own works on public peer-to-peer networks. It does not address how they would determine the material was being traded illegally without intruding on consumers' privacy.

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