It may not be long before you buy DVDs, videos, CD-ROMs, music, and other digital content packages with labels telling you the products contain anti-piracy programming. Those labels will be required by law, if a bill introduced this week by U.S. Sen. Ron Wyden (D-Oregon) - a bill he calls the Digital Consumer Right-To-Know Act - becomes law.
"While digital media companies are racing to develop technologies to combat piracy," the senator said in a formal statement, "some of these antipiracy measures could have the effect of restricting lawful, legitimate consumer uses as well as unlawful copying. My bill says that if digital content is released in a form that prevents or limits reasonable consumer use, consumers have a right to be told in advance."
The Cato Institute says otherwise. "I think it's safe to say that markets already do a fair job of conveying such information already," said Adam Thierer, director of telecommunications studies at the libertarian think tank, "but many people, of course, don't like to read the fine print." And he said that if and when disputes arise, the parties can slug it out in court, "as they have for decades.
"There's no reason for Congress to intervene in an attempt to resolve each and every intellectual property dispute," Thieren said.
The Federal Trade Commission would have a year to work up such disclosure rules for packages like Microsoft's Windows XP operating system, most DVD releases, a large enough number of other CD-ROM software packages, and those musical compact discs that have anti-piracy "schemes" inside, if Wyden's bill survives to become federal law. The Senate Commerce, Science, and Transportation Committee gets first crack at the bill, which Wyden introduced in the Senate March 24.
The bill's language notes that anti-piracy technologies risk putting limits on consumer flexibility to "use and manipulate" what they buy for "reasonable, personal, and noncommercial uses." That, the bill continued, "could result in greater market power for the holders of exclusive rights and reduce competition, by limiting the ability of unaffiliated entities to engage in the lawful secondhand sale or distribution of such content."
"Do we need a government-mandated label on our media?" Thierer asked. "Ironically, a lot of the same folks who were rightly opposing Tipper Gore and company on placing mandatory warning labels on CDs now want federally-mandated warnings on copy protection. And once we allow the federal government to get a foot in the door toward labeling our movies in one way, what's to stop them from mandating labeling in other ways in other areas?"
A House bill taking a slightly milder approach than the Wyden bill was brought forth by Reps. Rick Boucher (D-Virginia) and John Doolittle (R-California) last October. Their bill called for requiring sellers, rather than the content-makers themselves, to label any products containing anti-piracy programming.
"In this emerging digital era, we need to return to first principles," Boucher wrote in a January 2002 opinion column, anticipating that bill. "We need to achieve the balance that should be at the heart of our efforts to promote the interests of copyright owners while respecting the rights of information consumers. We need to rewrite the law for the benefit of society as a whole before all access to information is irreversibly controlled. In short, we need to reaffirm fair use."
Thieren said there is really only one place to reaffirm that balance: the marketplace. "The better alternative to federal mandates is to instead just encourage what we like to call a technological free-for-all in the marketplaces," he said. "Let the industry do whatever it wants to protect its content, but let consumers continue to experiment with digital content without fear of federal invention at every turn. Coercion should be kept out of the debate over intellectual property to the maximum extent possible."
