Boucher Puts DMCA Reform on the Back Burner

by on February 28, 2007 · 10 comments

I’ve got a lengthy analysis of Rick Boucher’s latest copyright reform legislation. Despite being titled the “FAIR USE Act,” and despite the fact that Boucher’s press release focuses on the harms of the DMCA, the bill itself would do little or nothing to remedy the problems created by the DMCA:

If Boucher’s legislation passed, a film studies professor would be permitted to use software such as Handbrake to circumvent the copy protection on DVDs and create an audiovisual presentation featuring scenes from various movies. However, developing or distributing Handbrake in the United States would still be a crime.

Obviously, as a practical matter, that college professor already has the ability to use Handbrake without any real fear of prosecution. The MPAA knows that prosecuting a college professor for showing videos in his class would be a PR disaster. The problem is that, unlike previous versions of the legislation, Boucher’s new bill offers no legal protections for the developers of software like Handbrake. As a result, the tools required to exercise fair use are difficult to find, not as user-friendly as they could be, and not supported by major software companies like Apple and Microsoft. Perhaps worst of all, the law makes it impossible for legitimate software firms (in the United States, at least) to develop new software to make innovative uses of content obtained from DVDs, iTunes, or other DRM-encumbered formats. In the 1990s, software companies developed MP3 software that revolutionized music over the objections of the recording industry. An entrepreneur wanting to do the same thing for DVDs would run afoul of the law–and Boucher’s legislation would do nothing to change that.

Needless to say, this is disheartening to those of us who see DMCA reform as a high priority. Granted, Boucher’s bill didn’t go anywhere in previous sessions of Congress, and would likely have been a long shot again this session. But it was still nice to at least have somebody in Congress carrying the torch. Now, it doesn’t look like anyone will introduce meaningful DMCA reform in this session of Congress.

What’s going on here? Read the rest of the article for my take on Boucher’s apparent change of priorities.

  • Doug Lay

    I’m skeptical that the CEA is behind the relative toothlessness of Boucher’s latest DMCA reform proposal. Certainly, if Gary Shapiro’s public statements are any guide, the CEA has become more solidly opposed to the DMCA anti-circumvention provision, not less.

    More likely, I think Boucher is simply recognizing certain realities. First of all, his earlier proposed legislation went nowhere in the last Congress or the Congress before it. One of the biggest opponents of that legislation was Rep. Howard Berman (D-Hollywood) who is now the chair of the subcommittee with responsibility for the Boucher bill. Simply put, no bill that places consumer Fair Use interests ahead of the interests of copyright holders is going to get out of a committee with Berman at the head. Period.

    Second, Boucher needs to work with Hollywood Howard Berman on patent reform (an area where Berman actually shows some fairly progressive instincts). If Boucher needs to work with Berman to achieve something on patent reform, it just doesn’t make sense to be fighting him, in an almost certain losing battle, on copyright. For those of us who’ve opposed the DMCA for years, this sucks, but it’s just the way things are for now. It doesn’t make sense to blame the CEA, or even to blame Boucher.

  • Doug Lay

    I’m skeptical that the CEA is behind the relative toothlessness of Boucher’s latest DMCA reform proposal. Certainly, if Gary Shapiro’s public statements are any guide, the CEA has become more solidly opposed to the DMCA anti-circumvention provision, not less.

    More likely, I think Boucher is simply recognizing certain realities. First of all, his earlier proposed legislation went nowhere in the last Congress or the Congress before it. One of the biggest opponents of that legislation was Rep. Howard Berman (D-Hollywood) who is now the chair of the subcommittee with responsibility for the Boucher bill. Simply put, no bill that places consumer Fair Use interests ahead of the interests of copyright holders is going to get out of a committee with Berman at the head. Period.

    Second, Boucher needs to work with Hollywood Howard Berman on patent reform (an area where Berman actually shows some fairly progressive instincts). If Boucher needs to work with Berman to achieve something on patent reform, it just doesn’t make sense to be fighting him, in an almost certain losing battle, on copyright. For those of us who’ve opposed the DMCA for years, this sucks, but it’s just the way things are for now. It doesn’t make sense to blame the CEA, or even to blame Boucher.

  • http://www.techliberation.com/ Tim Lee

    Yeah, I don’t necessarily fault Boucher for making a tactical retreat on the DMCA front in order to focus on battles elsewhere. But then why not be forthright about it and leave the DMCA stuff out entirely? Why does his press release tout the token DMCA tweaks while burying the far more significant Grokster stuff at the end of the press release?

  • http://www.techliberation.com/ Tim Lee

    Yeah, I don’t necessarily fault Boucher for making a tactical retreat on the DMCA front in order to focus on battles elsewhere. But then why not be forthright about it and leave the DMCA stuff out entirely? Why does his press release tout the token DMCA tweaks while burying the far more significant Grokster stuff at the end of the press release?

  • http://sethf.com/ Seth Finkelstein

    Because the DMCA stuff there is not problematic to the, err, “free-market competitive winners of commerce”, while the Grokster stuff *is* bothersome.

  • http://sethf.com/ Seth Finkelstein

    Because the DMCA stuff there is not problematic to the, err, “free-market competitive winners of commerce”, while the Grokster stuff *is* bothersome.

  • Doug Lay

    Seth, I don’t follow you. I assume you mean “Big Business” when you say “competitive winners of commerce.” There are plenty of Big Business organizations that are dead-set against any weakening of the DMCA’s anti-circumvention provision, no matter how watered down. The RIAA, MPAA, BSA and AAP all come to mind. Of course, these organizations all have detested Boucher for some time and apparently he doesn’t much care. Also, there are plenty of Big Businesses that will benefit from weakening of the Supreme Court’s Grokster ruling (Google, Yahoo, Ebay and even Microsoft and the phone companies come to mind). Basically, Big Business has interests on both sides of both the DMCA and Grokster issues.

    My guess is Boucher is playing up the DMCA stuff, weakened as it is, because he knows that after years of hard work by the EFF and people like Cory Doctorow, Gary Shapiro and Tim Lee, there’s a fair number of people out there who really feel like the DMCA is a Bad Thing. It’s not a popular law at all among the Internet cognoscenti whose interests Boucher seems to want to represent. The Grokster decision, on the other hand, isn’t understood on quite so broad or basic a level. It’s not so much of a hot button.

  • Doug Lay

    Seth, I don’t follow you. I assume you mean “Big Business” when you say “competitive winners of commerce.” There are plenty of Big Business organizations that are dead-set against any weakening of the DMCA’s anti-circumvention provision, no matter how watered down. The RIAA, MPAA, BSA and AAP all come to mind. Of course, these organizations all have detested Boucher for some time and apparently he doesn’t much care. Also, there are plenty of Big Businesses that will benefit from weakening of the Supreme Court’s Grokster ruling (Google, Yahoo, Ebay and even Microsoft and the phone companies come to mind). Basically, Big Business has interests on both sides of both the DMCA and Grokster issues.

    My guess is Boucher is playing up the DMCA stuff, weakened as it is, because he knows that after years of hard work by the EFF and people like Cory Doctorow, Gary Shapiro and Tim Lee, there’s a fair number of people out there who really feel like the DMCA is a Bad Thing. It’s not a popular law at all among the Internet cognoscenti whose interests Boucher seems to want to represent. The Grokster decision, on the other hand, isn’t understood on quite so broad or basic a level. It’s not so much of a hot button.

  • http://sethf.com/ Seth Finkelstein

    To be less flippant – the DMCA provisions of the new bill are, overall, extremely minor. Yes, the MPAA/RIAA/etc will scream about anything, no matter how trivial. But the actual changes being proposed do not address the core problem with the DMCA, of the prohibition on *tools*, as pointed out. So it’s really not very threatening to the MPAA/RIAA/etc. even if they do their standard screaming.

    In contrast, the Grokster portion is likely to be a much more *real* fight, one where there just may be some _economic_ interest affected. Thus, there’s an incentive to keep that low-key for the time being. Have the flaming be on the sideshow, not the lion’s den. Or at least, that’s my take on how Boucher wants to play it.

  • http://sethf.com/ Seth Finkelstein

    To be less flippant – the DMCA provisions of the new bill are, overall, extremely minor. Yes, the MPAA/RIAA/etc will scream about anything, no matter how trivial. But the actual changes being proposed do not address the core problem with the DMCA, of the prohibition on *tools*, as pointed out. So it’s really not very threatening to the MPAA/RIAA/etc. even if they do their standard screaming.

    In contrast, the Grokster portion is likely to be a much more *real* fight, one where there just may be some _economic_ interest affected. Thus, there’s an incentive to keep that low-key for the time being. Have the flaming be on the sideshow, not the lion’s den. Or at least, that’s my take on how Boucher wants to play it.

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