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DRM: Legislation
On this page:
Last Update: 10 Feb 05
To get the text of Senate or House bills, go to the "Thomas" Web site http://thomas.loc.gov
Enter the bill number in the Search window.
The Consumers, Schools and Libraries Digital Rights Management
Awareness Act of 2003
Bill Status:
- September 17, 2003: Senate Commerce Committee held a hearing on S. 1621.
http://commerce.senate.gov/hearings/witnesslist.cfm?id=919
- September 16, 2003: Sen. Brownback (R-KS) introduced S. 1621. The bill
has been referred to the Senate Committee on Commerce, Science and Transportation.
(See supporting letter from the library associations in Related
Files at the bottom of the page.)
Summary:
The Consumers, Schools and Libraries Digital Rights Management Awareness
Act of 2003 provides rules that would govern the inclusion of access and redistribution
control technologies on digital products.
S.1621 prohibits the Federal Commerce Commission (FCC) from mandating that
digital media products include access and redistribution control technologies
(often known as digital rights management technologies).
The bill further requires the Federal Trade Commission (FTC) to establish an
advisory committee to assess the ways in which these technologies affect consumer,
educational institution, and library use of these products. The committee must
include a diverse membership including libraries and educational institutions.
S. 1621 requires that two years after enactment of the bill the FTC report to
Congress about the extent and nature of the impact of control technologies on
the ability of consumers, educational institutions and libraries to use digital
media products.
The bill also allows for the "lawful owner of a digital media product
" to transmit a copy of the product to one other recipient "as long
as the technology used by that person to transmit the copy automatically deletes
the digital media product at the time of transmission." In an attempt to
deal with secondary markets for digital products, the bill stipulates that a
manufacturer may not include access or redistribution control technologies that
would prevent a consumer from donating the products they own to educational
institutions or libraries. The bill also requires that any product that does
include access and redistribution technologies must conspicuously provide notice
to consumers.
"Author, Consumer, and Computer Owner Protection
and Security Act of 2003"
Bill Status:
- July 16, 2003 Referred to House Judiciary Committee
Summary:
H.R. 2752, introduced by Representatives Conyers (MI-D) and Berman (CA-D)
on July 16, 2003, is another in a series of efforts by the entertainment industry
to curtail peer-to-peer file sharing of copyrighted music and videos. The bill
is expected to be combined with H.R. 2517, the Piracy Deterrence and Education
Act of 2003 in the fall of 2003.
H.R. 2752 defines uploading a single copyrighted work to a publicly accessible
computer network equivalent to uploading 10 copies of a work with a retail
value of $2500. This definition makes such an act a felony. Currently, under
existing law the basic threshold for criminal copyright liability is the willful
infringement either 1) for purposes of commercial advantage or private financial
gain; or 2) by the reproduction and distribution, during a 180 day period,
of 1 or more works with a total retail value of over $1,000. Infringement
becomes a felony when more than 10 copies with a total retail value of over
$2500 occurs. Under H.R. 2752, a single upload will be treated as meeting
the $2500 felony threshold even if it has not in fact been crossed.
H.R. 2752 also seeks to strengthen domestic and international prosecution
of unauthorized use of copyrighted materials. The bill authorizes $15 million
dollars to the Department of Justice for the year 2004 to finance investigate
and prosecute violators. In addition, it requires online distributors of file-swapping
software to give conspicuous notice to, and receive specific consent from
the downloader of that software if it enables third parties to use the downloader's
computer to store data or if it creates security or privacy risks. The bill
makes it a criminal offense to camcord a movie without authorization from
the copyright holder. Critics of the bill consider that it is too harsh and
leaves open the possibility of misapplication.
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"Piracy Deterrence and Education Act of 2003"
Bill Status:
- 19 June 2003 Referred to House Judiciary Committee's Sub-committee on
Courts, the Internet and Intellectual property
- 17 July Sub-committee holds hearings
Summary:
The "Piracy Deterrence and Education Act of 2003," (H. R.
2517) was introduced in the House by Rep. Lamar Smith (TX-R) on June 19, 2003.
The bill was co-sponsored by Mr. Berman (CA-D) and Mr. Conyers (MI-D). The
bill seeks "to enhance criminal enforcement of the copyright laws, educate
the public about the application of copyright law to the Internet, and clarify
the authority to seize unauthorized copyrighted works." This bill is
expected to be revised in combination with the "Author, Consumer and
Computer Owner Protection and Security Act of 2003" above.
The bill authorizes the FBI "to develop a program to deter members of
the public from committing acts of copyright infringement." That section
of the bill implies that any uploading or downloading of a copy of a copyrighted
work without the authorization of the copyright owner is illegal. Certainly
under existing copyright law, there are many uses and copying of copyrighted
works that are allowed and that are not considered to infringe copyright.
Libraries are concerned that H.R. 2517 would require the FBI to deter certain
lawful uses of copyrighted works.
The bill also authorizes the Office of the Associate Attorney General of
the United States to educate the public about copyright, the privacy, security
and legal risks associated with unauthorized copying of copyrighted works
on the Internet, and to ensure compliance by educational institutions and
corporations. The libraries support a copyright education campaign as long
as it presents a balanced understanding of consumer and citizen rights under
copyright law. It is crucial that government agents enforcing copyright laws
be able to distinguish between unauthorized copying that is legal and that
which is not.
Anticounterfeiting Amendments of 2002
Letter opposing Biden bill 
Bill Status
- 2003 - The bill is not expected to be reintroduced this year.
- 2002- The bill passed out of the Senate Judiciary Committee without
hearings or a report. Just before the Senate's August recess, there was
an effort to pass the bill on the Senate floor on unanimous consent. Several
Senators, however, placed a "hold" on the bill because of numerous
concerns from diverse groups, including libraries and universities.
History
Senator Biden introduced S. 2395, the Anticounterfeiting Amendments of 2002.
The bill is intended to create liability for trafficking in illicit authentication
features--a hologram, watermark, certification, symbol, code or other means
of designating that the product to which the authentication feature is affixed
is authentic.
The bill could pose major problems for anyone exercising fair use. The library
community is concerned that the bill could adversely impact librarians using
interlibrary loan and making preservation copies of works. Potentially, if
the TEACH Act is enacted to update is enacted to upadate the copyright law
for distance education, the distribution of copyrighted material without permission
from the copyright owner could constitute a violation of the anti-trafficking
provisions of S. 2395. The kinds of works included in the bill are phonorecords,
computer programs, and motion pictures and other audiovisual works, all of
which could be included in otherwise exempt transactions.
In addition, there may be problems in the remedies provisions of the bill.
Perhaps most alarming, this bill modifies the US criminal code, so that potential
copyright infringement transaction -- or even exempt uses such as fair use
-- could be subject via trafficking in illicit authentication measures to
criminal penalties including imprisonment.
Bill Sponsors
In addition to Senator Joseph Biden (D-DE), co-sponsors of the bill included
the following:
Sen. Barbara Boxer (D-CA); Sen. Kent Conrad (D-ND); Sen. Michael DeWine (R-OH);
Sen. Byron L. Dorgan (D-ND); Sen. Dianne Feinstein (D-CA); Sen. Orrin G. Hatch
(R-UT); Sen. Ernest F. Hollings (D-SC); Sen. Patrick J. Leahy (D-VT); Sen.
Patty Murray (D-WA); Sen. Benjamin E. Nelson (D-NE); Sen. Gordon Smith (R-WA);
Sen. Strom Thurmond (R-SC);
Sen. George Allen (R-VA) withdrew his sponsorship on 8/1/2002 because of
his concerns about the bill.
Talking Points
S. 2395 should not be passed until it receives careful analysis and until
hearings are held. The carefully crafted balances of the Copyright Act should
not be circumvented by hastily drafted and considered amendments that have
not been the subject of even one hearing.
As currently drafted it has unintended consequences that could be very harmful
to our institutions and our users, as follows:
- Copyright permits the copying of works in a wide variety of academic,
library, and private consumer settings. S. 2395 would outlaw these reproductions
if they involve making and providing to others (or "trafficking in")
copies of works containing digital watermarks. S. 2395 would also inhibit
the removal of the watermarks from these lawfully made copies. S.2395's
requirement that the prohibited trafficking involve "consideration"
- transporting or transferring to another in exchange for "anything
of value" -- would be easily met because libraries often receive reimbursement
for the costs involved in making copies for interlibrary loans, and scholars
frequently exchange materials of mutual interest.
- S. 2395 imposes more severe penalties than the Copyright Act for identical
behavior. Criminal liability under the Copyright Act attaches only for willful
infringements that result in private financial gain or copies with a retail
value of more than $1,000. By contrast, distributing a copy of even one
song containing a digital watermark could trigger criminal liability under
S. 2395. Thus, S. 2395 could lead to criminal sanctions for minor infringements
by ordinary consumers, notwithstanding the bill's stated purpose of targeting
"organized criminal counterfeiting enterprises" that are a threat
"to the economic growth of United States copyright industries."
- S. 2395 also gives civil plaintiffs more remedies than are available under
the Copyright Act for identical conduct,including the potential for far
greater statutory damages as well as treble damages from repeat offenders.
Consumer Broadband and Digital Television Promotion
Act
Bill Status
- 2003- Sen. Hollings has indicated he might reintroduce the bill in this
year's session.
- 2002- S. 2048 was highly controversial and did not move this year.
Summary of S2048
- S2048 authorizes the Federal Communications Commission (FCC) and the Register
of Copyrights to monitor the ongoing negotiations in the private sector to
determine if the parties (content providers, consumer electronics firms) can
reach consensus on security system standards and encoding rules that would
be installed on all "digital media devices." The term refers to
any hardware or software that reproduces copyrighted works in digital form.
Thus, the standards set by this bill would apply to desktop or laptop computers,
mainframes, TV sets, satellite receivers, an electronic toy, e-books, just
about any piece of electronics that a consumer or business would use.
- The bill mandates government intervention to establish standards if the
consumers electronics manufacturers and content providers cannot reach consensus.
- The bill outlines a series of steps for the FCC to take depending on the
outcome of the private sector talks. If the parties are unable to agree, then
the FCC is authorized to determine its own standards and encoding rules and
to implement rulemakings according to a timetable described in the bill.
History
Responding to the complaints of content providers like Disney and News Corp.
about billions of dollars lost to piracy each year, the Hollings bill seeks
to prevent such losses by mandating the standards for and the installation
of copyright protection devices that would be installed in all "digital
media devices."
The bill grows out of two assumptions: that the dearth of high quality digital
content relates to the lack of adequate security technology; and that the
roll-out of broadband technology and the transition to digital television
have been hindered by the lack of high quality content. It is unclear how
valid these assumptions are.
After years of meetings, consumer electronics manufacturers and content providers
have been unable to agree on technology and technology standards that would
be required to protect digital content at its source. Consumer electronics
firms question whether ironclad digital content protection technology is even
possible.
All sides have stated that any secure technology protections should still
allow legal home, educational and research use of the protected materials.
The needs of libraries are not specifically mentioned. However, consumer electronics
manufacturers like Intel and Mitsubishi have expressed concerns that the proposed
technology would threaten fair use rights.
Legislative Activity
Preventing the piracy of digital material is the subject of intense interest
in Congress. Everyone agrees that piracy must be stopped because it is having
a detrimental economic impact. The Senate Judiciary Committee has also taken
up the issue of copyright protection. However, Sen. Leahy (D-VT), chair of
the committee, is admittedly skeptical about encouraging the government to
establish standards for copyright protection devices. Sen. Leahy held his
own hearings on the subject on March 14, 2002. Taking a more cautious approach,
the Judiciary Committee will monitor private sector negotiations.
The Hollings bill would require the support of the Judiciary Committee before
it could go to the full Senate for a vote. Sen. Leahy promised that no bill
will pass his committee in 2002.
The Senate's deadlock on this issue is matched by increasing interest in
the House. Rep. Sensenbrenner (R-WI), chair of the Judiciary Committee, is
studying the issue of content protection and may consider amendments to the
Digital Millennium Copyright Act (DMCA). Rep. Schiff (D-CA), also a member
of the committee, has indicated that he will introduce a copy protection bill
later this year that would be similar to the Hollings bill. Meanwhile, Rep.
Tauzin (R-LA), chair of the House Energy and Commerce Committee, has indicated
that he prefers to give the private sector firms further time to negotiate
their differences rather than intervene.
Where do the libraries stand?
Libraries are watching these developments carefully with an eye to determining
the implications of this legislation on preserving fair use rights. Although
there appears to be consensus that consumers should still be able to flexibly
use the products they have purchased, it is unclear how this will affect fair
use. After all, this bill supports the mandatory installation of technology
which will further the ability of copyright holders to tighten their control
over the access to and use of digital content.
Links:
Panelist Testimony:
- Mr. Michael D. Eisner, Chairman and CEO, The Walt Disney Company, 500
S. Buena Vista Street, Burbank, CA 91521
http://commerce.senate.gov/hearings/022802eisner.pdf
- Mr. Peter Chernin, President and Chief Operating Officer, News Corporation,
1211 Avenue of the Americas, New York, NY 10036
http://commerce.senate.gov/hearings/022802chernin.pdf
- Mr. Jack Valenti, President and CEO, The Motion Picture Association of
America, 15503 Ventura Boulevard, Encino, CA 91436
http://commerce.senate.gov/hearings/022802valenti.pdf
P2P Piracy Prevention Act
Bill Status:
- 20 August 2002, Referred to House Judiciary Committee's Sub-committee
on Courts, the Internet and Intellectual property
Congressman Berman (D-CA) introduced HR5211, the Peer-to-Peer Piracy Prevention
Act ( "P2P Piracy Prevention Act"), on July 25, 2002, another entertainment
industry friendly piece of legislation that would enable copyright owners
to take "self-help" measures to prevent an infringing file from
being shared via peer-to-peer networking. Such self-help measures include
the right of the copyright holder to hack consumer computers using denial
of service attacks and other strategies.
Both the Hollings bill (S.B.2048 & H.R.5211) were strongly opposed by
the consumer electronics and information technology industry, the library
and education communities and consumer advocacy groups. H.R. 5211 would create
a safe harbor from liability so that copyright owners could employ self-help
technological tools to prevent the illegal distribution of their copyrighted
works over a P2P network. Such tools would include interdiction, decoys, redirection,
file-blocking, and spoofs among others. The goal of the legislation is to
reduce illegal file trading over peer-to-peer networks. Opponents of H.R.
5211 argue that the proposed legislation gives copyright owners too much leeway
in pursuing potential infringers, permitting copyright owners to interfere
with, block, divert or otherwise impair the computers they suspect of containing
copyright infringing material.
Links:
- Congressman Berman's House Floor speech introducing H.R. 5211, the Peer-to-Peer
Piracy Prevention Act. This link also provides links to the bill text, section-by-section
analysis and FAQ document.
http://www.house.gov/berman/floor072502.htm
- Congressional Hearing Transcript, September 26, 2002 (House Subcommittee
on Courts, the Internet and Intellectual Property) Piracy of Intellectual
Property on Peer-to-Peer Networks
http://www.house.gov/judiciary/81896.PDF
- Computer and Communications Industry Association (CCIA) Press Release
opposing H.R. 5211, the Peer-to-Peer Piracy Prevention Act
http://www.ccianet.org/press/02/0724.php3
- Electronic Frontier Foundation Statement Opposing H.R. 5211, the Peer-to-Peer
Piracy Prevention Act, http://www.eff.org/IP/P2P/20020802_eff_berman_p2p_bill.html
- Public Knowledge Press Release responding to the Introduction of H.R.
5211, the Peer-to-Peer Piracy Prevention Act:
http://www.publicknowledge.org/press-releases/self-help.html
- "Copyright and Digital Media in a Post-Napster World," GartnerG2
and The Berkman Center for Internet & Society at Harvard Law School,
8/2003.
http://cyber.law.harvard.edu/home/2003-05
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