Digital Rights Management: Legislation

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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.

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"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.

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Anticounterfeiting Amendments of 2002

Letter opposing Biden bill (pdf)

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.

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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:

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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.

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