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WASHINGTON, D.C. -- The deletion of a single word has dragged a relatively uncontroversial bill into the fair-use fray.

Anticounterfeiting bill S2395 introduced in April by Senator Joseph Biden (D-Delaware) exited many groups' radar screens by the time it left the Senate Judiciary Committee in mid-July. The bill was originally designed to criminalize the forgery of a "physical feature" used for authentication on software, movies, and music--such as mock holograms created to make pirated CDs look legitimate.

But as the bill heads for a full Senate vote, critics are noting that a key word--physical--was dropped. The omission extends the proposal's reach from tangible trickery to digital dupery as well, an addition that some say the legislation is ill-equipped to tackle. It also raises concerns about fair-use rights, say some consumer advocates.

Digital authentication is computer code embedded into music, movies, or computer software that is meant to assure the user that the product is legitimate.

Biden's office says the change was made because digital and physical counterfeiting should be treated the same under law--in the case of this bill, that means a jail sentence of up to a five years and a fine as much as $25,000.

The bill wouldn't restrict consumers from making copies for their private use because the proposed legislation targets trafficking--meaning that copies need to be traded for value, a Biden aide says.

Creating Criminals?

However, some critics argue that the bill's language isn't specific enough to guarantee protection for all fair-use situations.

For example, libraries that trade digital works could, in theory, be sued under the bill, says Jonathan Band, a partner with the law firm Morrison and Foerster.

Band says the bill has become too broad and could accidentally hamper legitimate duplications, since many digital authentication materials will be embedded in the songs and software themselves. In that case, a user copying a song could, in effect, create fake authentication without even knowing it, he says.

Some feel dropping the word was unnecessary.

"This is essentially an attempt to rewrite the Digital Millennium Copyright Act through the back door," says Fred Von Lohmann, an attorney for the Electronic Frontier Foundation. Because the DMCA already addresses digital watermarking, a form of authentication, Von Lohmann says, "it's hard to see why this is necessary."

Biden's office counters that the bill is geared toward plugging a hole in the DMCA, not rewriting it.

"The DMCA does not explicitly criminalize trafficking in illicit authentication features. That is the primary purpose of this bill," says a Biden Judiciary staffer.

Hefty Support

The bill has some powerful backing in the Senate, with co-sponsors including Commerce Committee Chair Ernest Hollings (D-South Carolina) and Judiciary Committee Chair Patrick Leahy (D-Vermont). It is also supported by a number of Senate Republicans, including Orrin Hatch (R-Utah) and Strom Thurmond (R-South Carolina).

Now that the legislation has moved out of committee, the Senate leadership could chose to hold a vote on it as early as this week. "It could be any day now," says Biden spokesperson Chip Unruh.

However, a Democratic leadership spokesperson says a vote is more likely to occur after the Senate's August recess.

Similar legislation pending in the House of Representatives, HR5057, retains the "physical" qualifier.

"When they [Senate members] struck the word 'physical,' that fundamentally changed the legislation," says Brad Bennett, press secretary for House bill author Representative Lamar Smith (R-Texas).

"I would say Congressman Smith has concerns about including digital authentication to the bill," Bennett adds.

If the House and Senate legislation are passed in their current forms, a joint conference committee will need to work out their differences before returning the bill to both houses for a new vote.

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