Interview with a congressman--part one
By Eliot Van Buskirk
Senior editor
(4/26/02)
When a regular reader of my column e-mailed me to say that he could set up an interview with Rep. Rick Boucher (D-Virginia), I admit that I was a bit skeptical. After all, this is the Internet, where people e-mail you with seemingly impossible opportunities everyday. But soon enough, I was on the phone for half an hour with Rep. Boucher, who called fresh from a vote on the House floor to talk with me about a variety of pressing online music issues--most specifically, our right to the fair use of the content that we buy. This constitutional right, which is closely related to free speech, has already been severely damaged by the DMCA (Digital Millennium Copyright Act) and could be obliterated by a new bill introduced by Sen. Ernest "Fritz" Hollings (D-South Carolina). Boucher thinks that you should be able to burn mix CDs, but due to the lobbying efforts by the record industry in Washington, many others in Congress don't see things in the same proconsumer light. Here's what Rep. Boucher had to say in this first of two installments.
Note: This first section of the interview can be downloaded for free as an MP3 file, under the EFF's Open Audio License. That means you can legally download this interview to a shared folder and distribute it on any file-sharing network, but you cannot alter the file itself or remove attribution.
Download and listen to the first half of MP3 Insider's interview with fair-use advocate Rep. Boucher.
MP3 Insider: So I really liked your article on CNET News.com, and it seems like we agree with each other on a lot of these issues.
Rep. Boucher: Yeah.
M: I'm wondering, just to start things off, do you use a computer to download or stream music?
I defend peoples' right to [download music from the Web] in a lawful manner, but I have not undertaken that practice myself.
B: I actually use a computer a lot. I have three computers that I use on a regular basis--one is on my desk top in my Washington office, another is at home, and I have my laptop that I use when I'm traveling. However, I'm not in the habit of downloading music from the Web. I defend peoples' right to do that in a lawful manner, but I have not undertaken that practice myself.
M: OK. So how long would you say that you've been online?
B: I have been online since the early '90s. The first legislation that I produced relating to the Internet was a bill to overturn a restriction inside of the law that prohibited the Internet backbone from being used for anything other than research and scientific and educational communication.
M: Interesting.
B: The effect of that restriction, which was known as the acceptable-use policy, prohibited electronic commerce, and the first Internet-related legislation that I sponsored, which was in 1992, repealed the acceptable-use policy and thereby enabled the Internet to be used for electronic commerce. So I have been involved in Internet-related policy for approximately one decade, and I have been using the Internet myself for almost that period of time.
M: Excellent, so you definitely know the area fairly well.
B: Yes.
M: OK, so now into some more specifics. You've gone on the record as a vocal opponent of the DMCA, the anticircumvention clause especially, and I remember Orrin Hatch, who's a Republican, making statements in support of file sharing back during the Napster hearing. I'm wondering if you could tell me, how do you think the two parties line up overall, in terms of consumers' digital rights in the Internet age?
B: Well, I think what you're seeing is that among the handful of members of Congress who are involved in intellectual-property policy today, House and Senate, you are seeing those members basically divide into two camps. One of those camps staunchly defends all of the provisions of the DMCA, staunchly defends the 20-year extension of copyright terms, staunchly defends the content community's copyright interests, against all efforts to enhance the rights of the users of intellectual property--that's one camp. The other camp is the other side of the equation, and that other camp is members who believe that the historical balance between the rights of copyright owners and the rights of the users of copyrighted material has been dramatically altered in favor of the owners of copyrights at the expense of the rights of the users of copyrighted material.
M: Right.
B: I am in that camp [the second one].
M: Good.
B: I think that the balance needs to be restored, and I would note that in the camp in which I am in, one finds libraries, universities, the Internet industry, the manufacturers of digital media, and consumers.
M: Speaking of the consumers, I know the MPAA and RIAA are fairly well organized in terms of their efforts. Are there any kind of consumer-advocacy groups getting involved? I mean, I sometimes get the feeling that people--consumers--don't know what's at stake here, really.
[The MPAA and RIAA], by virtue of their long-standing knowledge of Congress and relationships with many key members of Congress, would appear to have the upper hand.
B: Well I think that's true. I think this debate is just beginning, and in the early stages of any debate, oftentimes the external stakeholders appear to be somewhat lopsided in terms of their ability to influence the process, and I would grant you that at the present time, the Motion Picture Association [of America] and the Recording Industry Association of America, by virtue of their long-standing knowledge of Congress and relationships with many key members of Congress, would appear to have the upper hand. On the other hand, I think a lot has changed since 1998, when the DMCA was passed by Congress. We now have the formation of a number of groups that are dedicated to user rights. I would include among those the Digital Media Association (DiMA), which represents Webcasters. They were not a part of the debate in 1998. I would also include the Electronic Frontier Foundation (EFF), the Center for--what is it called, Electronic Democracy, something along that line? All of these groups have come to the scene since 1998 and are now here, expressing the concerns of people who are users of intellectual property.
M: Right.
B: I think there's also a growing body of scholarship that suggests that what I said previously is true, and that is that the balance, which we always respected in our law, between the rights of intellectual-property owners and the rights of the users of that property has now been dramatically shifted, and that the balance now lies on the side of the owners of copyright, and that that shift has occurred at the expense of the rights of copyright owners. It has certainly occurred at the expense of the fair-use rights, which underpins our right to speak freely in society. That growing body of scholarship includes a number of prominent law professors and writers on the West Coast.
M: Are you familiar with Lawrence Lessig and his work [Code & Other Laws of Cyberspace and The Future of Ideas ]?
B: Yes, I am. I've read his work, and I applaud it. I think he's exactly on target.
M: Right. I get letters from people all the time, I mean they read my column when I tell them what these laws say they can't do, and I think more people who have CD burners now, and the average person is starting to understand this a little more, maybe, we'll see...
Millions of Americans have now become accustomed to using their CD burners at home in order to perform a completely lawful act.
B: Well I think we will, and you're absolutely right in saying that the attempt by the labels to introduce copy-protected CDs into the U.S. market is going to have a profound effect on this debate. Millions of Americans have now become accustomed to using their CD burners at home in order to perform a completely lawful act. And that is to take music that they have purchased at the store and rearrange the tracks on those CDs on a CD they've compiled themselves, so that they have on that self-manufactured CD, exactly the music they want to hear in the order in which they want to hear it. And that is a classic exercise of Constitutionally protected fair-use rights.
M: Right.
B: And to the extent now that people are frustrated in being able to perform that legal act, I think you're going to see millions of Americans complain to their members of Congress that something is amiss when they go to the store, buy a CD, and then take it home and find that they can't space-shift from that CD onto another CD they want to create for their own personal use.
M: Right, do you think the Sony vs. Betamax case is going to stand up as sort of a precedent that reinforces our right to fair use?
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 of which is noninfringing, that the technology is lawful technology as long as it has a substantial noninfringing use. I have very serious problems with punishing the technology. And that is precisely what the DMCA seeks to do. 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: ...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: 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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