Currently the DMCA says that nobody may sell or distribute any product that "is primarily designed or produced for the purpose of circumventing a technological measure". Some limited exceptions apply to librarians, police, people conducting reverse engineering, and encryption researchers. But when Linux programmers wrote the DeCSS.exe utility to play DVDs on their computers, eight movie studios sued and a federal judge said the program violated the DMCA. Ed Felten, a Princeton University computer scientist, and his co-authors were also threatened with legal action by the music industry if they published a paper describing flaws in a digital watermark system. "I think there's no doubt that there are appropriate fair uses which the DeCSS code would be facilitating," Boucher said. "For example, if someone simply wanted to get by the string of commercials at the start of a DVD so you could watch it without being subjected to all the advertising, DeCSS would allow that. It seems reasonable to me to allow the use of the code for that purpose." The Boucher-Doolittle bill would make three changes to the DMCA, all designed to permit people to bypass copy-protection schemes for legitimate purposes:
If the Boucher-Doolittle bill were to take effect, anyone selling copy-protected CDs would be required to include a "prominent and plainly legible" notice that it follows a modified format that may not play properly on all devices and may not be reproduced. Such CDs would also be required to sport detailed descriptions of return policies, minimum software required to play on a PC, and any restrictions on ripping songs to MP3 files, for instance. The bill amends an existing law titled the Federal Trade Commission Act and grants the Federal Trade Commission the power to regulate labels on audio CDs. Under existing law, the FTC already may regulate false advertising, "Made in America" labels and all other "unfair methods of competition". The FTC would develop regulations "to require the proper labelling" of CDs, and proscribing the removal or mutilation of any label. The restrictions would not apply to video DVDs, but they would cover DVD audio discs and the new Super Audio Compact Disc format. James Gattuso, a lawyer at the conservative Heritage Foundation, says he has mixed feelings about the Boucher-Doolittle proposal. "It's neither 100 percent good nor 100 percent bad," Gattuso said. "The core of it, putting in a fair-use exemption for the DMCA, seems to make a lot of sense. But then it also contains a number of provisions putting new regulations on the marketplace." "What it does is require a lot more disclosure, which sounds good," Gattuso said. "But in reality it means a lot more unread and useless warnings and disclosures that consumers will have to wade through. There's a cost to that. It could raise prices. It could take away from more important information that consumers really do want." In September, a music industry group called the International Federation of the Phonographic Industry proposed a logo identifying copy-protected CDs. But record labels have already begun to shy away from the idea. Next steps
It is a near certainty that the Boucher-Doolittle bill will not be enacted this year. Congress is about to recess before the autumn elections, and the bill will receive a frosty reception by some key legislators if it is reintroduced in the new congressional session that begins in January 2003. Boucher's strategy is simple: to bypass the copyright enthusiasts who serve on the House Judiciary committee. After Sklyarov was arrested last year, representative Howard Coble, a North Carolina Republican, who is chairman of the House Judiciary subcommittee on intellectual property, said, "The law is performing the way we hoped." On Thursday, the Boucher-Doolittle bill was referred to the House Commerce committee, which could be more sympathetic. "The committee on commerce is far more friendly and receptive in arguments on behalf of user rights than is the committee on the judiciary," said Boucher, who is a member of both panels. "The committee on the judiciary is more a venue for copyright owners to advance their arguments." On Wednesday, representative Zoe Lofgren, a California Democrat, introduced a similar bill that also would amend the DMCA to permit fair use and allow consumers to copy digital files "for archival purposes".
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