Thursday, January 20, 2005

Restriking the Balance: from DMCA to DMCRA

I've written a short article on the U.S. Digital Media Consumers' Rights Act (DMCRA), which has been published at the INDICARE website. Here's the abstract:
Historically US copyright law has sought a balance between rightsholders' and consumers' interests. The anti-circumvention provisions of the Digital Millennium Copyright Act have changed this balance to the benefit of rightsholders. Proposed legislation tries to restore the balance: the Digital Media Consumers' Rights Act would reaffirm fair use for consumers and augment the transparency of the use of technological protection measures. But what is fair? And should Europe follow this transatlantic initiative?
To answer both questions briefly: Unclear. Yes.

Unclear in the sense that from the Hearings on the DMCRA it became more than apparent that both the nature and scope of fair use are subject to debate. A debate that the content industry (MPAA) ignited to circumvent the real question that is playing here, and Lawrence Lessig posed: "Whether you should have fair use despite the fact somebody has used a technology to take it away?"

Yes, when it comes to a European initiative comparable to the DMCRA. While the European Copyright Directive leaves much leeway to the Member States to soften its stringent anti-circumvention provisions, too little initiative has been shown on a national level to protect the interests of citizens, researchers and institutions like libraries.

The DMCRA has been stalled in the House, and it is questionable if it will ever see the light of day. If it is up to Senator Bono don't count on it in this lifetime. One of her interactions is about personal use with former Congressman Allan Swift, a home recordist for over 54 years. A bit long, but a telling clash of cultures (and interests) to end :
Mr. SWIFT. I make a program and I give it to a friend. They are
supposed to pay me for that?
Ms. BONO. No, no. You are supposed to pay the people.
Mr. SWIFT. I am supposed to pay. I have paid. I mean, I may
have——
Ms. BONO. Okay.
Mr. SWIFT. I may have 30 CDs.
Ms. BONO. Okay, so they are supposed to pay the creator of the
content. They can go to the Internet——
Mr. SWIFT. I give them a gift and they are supposed to pay——
Ms. BONO. That is not a gift. The copyrighted work is not a gift.
Mr. SWIFT. But if I give them that and they have to pay somebody,
it would seem to me that the only way that would work is
they would have to pay me.
Ms. BONO. No, they could go——
Mr. SWIFT. That is a violation of the copyright right there.
Ms. BONO. No, they wouldn’t have to pay you. They could go to
the record store. You could give them a list of your very favorite
songs or they could go to a website and support these industries
who have worked so hard at developing this.
Mr. SWIFT. No, no. I could say that you might really enjoy it if
you bought these 30 CDs and you put these cuts together in this
order.
Ms. BONO. You can post your list on the web. That is a very common
procedure. You can post you——
Mr. SWIFT. Why would I want to do that?
Ms. BONO. My question exactly.
Mr. SWIFT. I want to make a program. I do lap fades, cross fades.
I use portions of——
Ms. BONO. Which sampling is also suspect to me here.
Mr. SWIFT. My point is that what you are suggesting I do doesn’t
do what I want to do.
Ms. BONO. Well, sir, with all due respect, and I am sorry——
Mr. SWIFT. You are saying that I shouldn’t be able to——
Ms. BONO. I plan to take your words today and hack them and
butch them and put them on the Internet and do with them what
I wanted to do and disseminate them but because—you say you
take portions of copyrighted work and just send the portions out.
Mr. SWIFT. What I take is recordings I have paid for.
Ms. BONO. And?
Mr. SWIFT. And I put together different kinds of things for personal
use. I don’t do it for money. I don’t sell these. I don’t make
a lot of copies because, among other things, it is a lot of work. Just
creating the labels and sticking them on the blanks is a lot of work
so I just don’t. I have never done, I don’t think, more than 10 of
these. Okay? I am not a huge threat to this industry and——
Ms. BONO. Okay. But let us——
Mr. STEARNS. The gentlelady’s time has expired.
Ms. BONO. Thank you, Mr. Chairman.
Thank you indeed!

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