Battle Intensifies Over Right to Copy

Could making an MP3 mix of your favorite songs and recording Sex in the City on your PC or VCR turn you into a criminal? That's exactly what consumer advocates are warning, as Washington and Hollywood gang up on the issue of digital copyright and piracy.

A hearing before the Senate Judiciary Committee on Thursday was a coming-out party for DigitalConsumer.org, a consumer group that aims to protect fair use rights to save, copy, and move movies and music you own. Cofounder Joe Kraus testified alongside representatives of entertainment firms and technology companies.

Kraus warned the committee of the dangers of the overbroad and overbearing copy protection being advocated by some lawmakers, as well as by the movie and music industry.

"Under the guise of preventing illegal copying, I believe Hollywood is using the legislative process to create new lines of business at a consumer's expense," Kraus said in his testimony. "Their goal is to create a legal system that denies consumers their personal-use rights and then charge those consumers additional fees to recoup them."

DigitalConsumer.org calls for Congress to adopt a Consumer Technology Bill of Rights to "preserve consumers' historic fair-use rights that have been recently diminished by changes in copyright law made at the request of media companies," according to Graham Spencer, another cofounder. Essentially, it protects users' right to record a show or a song and then watch or hear it later, as well as to see or hear the work in a different medium than it was released in.

"We really want to clarify the legal rights of consumers before it is too late," Spencer says. "The closed-door discussions right now call for some very draconian copy-protection measures to be forced on consumers."

Spencer and Kraus also cofounded the Internet portal Excite. Their newest venture has the backing of many Silicon Valley VIPs, including individuals in the venture capital community.

Record labels and movie studios have long lobbied Congress to tighten federal copyright laws. The entertainment industry particularly fears pirating of movies, TV shows, and music over the Internet.

"They are worried about being Napsterized," said Justin Hughes, a professor at the University of California at Los Angeles School of Law, at the hearing.

Proposed solutions include asking PC vendors and software developers to voluntarily add tighter security to computers and set-top boxes.

One voluntary effort comes from consumer electronics firm Thomson. It is developing SmartRight, a technology designed to control the viewing, recording, and storing of digital content. SmartRight--which is still years off--will work with cable, satellite, and digital broadcasts, and will put controls for viewing and distributing video content on PCs.

"The computer industry is going to have to suck it up and put some sort of copy protection in their products," says Dave Arland, Thomson director of government and public relations. "Left to our own devices, I don't think we [Hollywood, PC makers, and consumer electronics makers] are going to get anywhere without the government's help."

At Thursday's hearing, Senator Patrick Leahy (D-Vermont) asked Intel and AOL Time Warner to negotiate a solution. The two must report to the Senate committee bimonthly on their progress. The Judiciary Committee has also opened a page on its Web site, where consumers may post their views.

Adding some urgency to the debate is a bill authored by Senator Fritz Hollings (D-South Carolina), chair of the Commerce Committee, that would make illegal the creation, selling, or distribution of "any interactive digital device that does not include and utilize certified security technologies." The Security Systems Standards and Certification Act (SSSCA) orders that copy protection be built into everything from your PC and handheld to your TiVo recorder and TV set-top box.

Hollings's SSSCA scares--and motivates--DigitalConsumer.org and the tech companies alike. DigitalConsumer.org contends that SSSCA's limitations on the personal use of entertainment products are too severe. Companies worry that the measure would cripple a PC's functionality, add manufacturing costs, and ultimately harm sales.

"It's not in our best interests to have government mandate a solution or to have content makers lock content so tight consumers cannot use it," says Jennifer Greeson, spokesperson for the Computer Systems Policy Project. The CSPP represents a number of leading technology companies, including Apple, Dell, IBM, Intel, Sun, and Unisys.

DigitalConsumer.org's concern extends to existing laws as well as proposals. At the top of its list is the 1998 Digital Millennium Copyright Act, which makes it illegal to bypass security measures and create copies of protected content. Spencer charges that it "is starting to erode existing fair-use rights."

The DMCA was cited by movie studios in a suit against the Web magazine 2600: The Hacker Quarterly, which published a link to a program called DeCSS, code that lets Linux users play DVDs on their computers. It was also invoked in charges against Dmitry Skylarof, a Russian programmer whose company developed software that subverts copy protection on Adobe Acrobat Reader.

Spencer and other consumer advocates say the DMCA does not adequately allow for fair use. That legal concept essentially says you don't violate copyright when you make a backup of something you've bought, like a song, for your personal use and not for profit.

Still, the recording industry, frustrated by its Napster experience and wary of digital audio players and CD burners, is already beginning to incorporate copy-prevention technology. Some major and independent music labels are adding code to standard audio CDs so that they cannot be played on a PC, much less copied into computer files.

Legislative guarantees of fair use have advocates outside of DigitalConsumer.org. The Computer Systems Policy Project questions whether the definition should be left to the entertainment or computer industries.

"Perhaps consumers would best served if fair use was clarified and enforced by the government and not big industries," Greeson says.