[opendtv] Is 'Fair Use' in Peril?
- From: Bill Hogan <billhogan1@xxxxxxxxxxxxx>
- To: OpenDTV <opendtv@xxxxxxxxxxxxx>
- Date: Thu, 25 Nov 2004 04:03:09 -0800
URL: http://www.technologyreview.com/articles/04/11/wo_hellweg111904.asp?p=1
[Massachusetts Institute of Technology]
Is 'Fair Use' in Peril?
The far-reaching Intellectual Property Protection Act would deny consumers many
of the freedoms they take for granted.
By Eric Hellweg
November 19, 2004
Do you like fast-forwarding through commercials on a television program you've
recorded? How much do you like it? Enough to go to jail if you're caught doing
it? If a new copyright and intellectual property omnibus bill sitting on
Congress's desk passes, that may be the choice you'll face.
How can this be possible? Because language that makes fast-forwarding through
commercials illegal -- no doubt inserted at the behest of lobbyists for the
advertising industry -- was inserted into a bill that would allow people to
fast
forward past objectionable sections of a recorded movie (and I bet you already
thought that was OK). And that's but one, albeit scary, scenario that may come
to pass if the Intellectual Property Protection Act is enacted into law.
Deliberations on this legislation will be one of the tasks for the lame-duck
Congress that commenced this week.
In a statement last month, Senator John McCain stated his opposition to this
bill, and specifically cited the anti-commercial skipping feature: "Americans
have been recording TV shows and fast-forwarding through commercials for 30
years," he said. "Do we really expect to throw people in jail in 2004 for
behavior they've been engaged in for more than a quarter century?"
Included in the legislation are eight separate bills, five of which have
already
passed one branch of Congress, one of which was approved by the Senate
Judiciary
Committee, and two of which have merely been proposed. By lumping all the bills
together and pushing the package through both houses of Congress, proponents
hope to score an enormous victory for Hollywood and some content industries.
Here's more of what's included: a provision that would make it a felony to
record a movie in a theater for future distribution on a peer-to-peer network.
IPPA would also criminalize the currently legal act of using the sharing
capacity of iTunes, Apple's popular music software program; the legislation
equates that act with the indiscriminate file sharing on popular peer-to-peer
programs. Currently, with iTunes, users can opt to share a playlist with others
on their network. IPPA doesn't differentiate this innocuous -- and Apple
sanctioned -- act from the promiscuous sharing that happens when someone makes
a
music collection available to five million strangers on Kazaa or Grokster.
Not surprisingly, the bill has become a focal point for very vocal parties. In
favor of the legislation are groups such as the Recording Industry Association
of America, the Motion Picture Association of America, and various songwriter,
actor, and director organizations. "We certainly support it," says Jonathan
Lamy, spokesperson for the RIAA. "It includes a number of things to strengthen
the hand of law enforcement to combat piracy. Intellectual property theft is a
national security crime. It's appropriate that the fed dedicate resources to
deter and prosecute IP theft."
Against the bill stand a number of technology lobbying groups and
public-interest organizations. "[IPPA] is a cobbled-together package to which
Congress has given inadequate attention. It is another step in Hollywood and
the
recording industry's campaign to exert more control over content," says Gigi
Sohn, president of Public Knowledge, a Washington, DC-based public interest
group that aims to alert the public to fair use and consumer rights
infringements, and fight those perceived infringements in Washington.
Anyone attuned to the machinations of Congress the last two years likely has
become numb to the often overblown rhetoric on this issue. Both sides use
hyperbole -- usually in the form of calling a piece of legislation the death of
an industry or the death of individual rights. The 1982 statement to a
congressional committee by Jack Valenti, then head of the MPAA, that the VCR is
to Hollywood what the Boston Strangler was to a woman alone still stands as the
ne plus ultra of exaggerated claims. And civil libertarians haven't met an
affront that didn't equal a stake through the heart of individual rights. But
IPPA demands attention not just from Hill watchers, but from regular
individuals. In part because IPPA is such a broad, encompassing bill that could
affect things as pedestrian as fast-forwarding a commercial, but also because
with Senator Orrin Hatch -- a very Hollywood-friendly pol -- on his way out as
the chair of the Senate Judiciary Committee, to be replaced possibly by Arlen
Specter, many in the Hollywood community see this as an important, last chance
to get their demands made into law.
Eric Hellweg is a technology writer based in Cambridge, MA.
Copyright 2004 Technology Review, Inc.
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