[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 
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 
passed one branch of Congress, one of which was approved by the Senate 
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 
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 
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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