Capitol Hill's moves toward a comprehensive overhaul of U.S. copyright law may be in for a fight from various groups who say such an overhaul would benefit Hollywood and the music business but be a disaster for freshly criminalized consumers.
A new Senate bill, the Intellectual Property Protection Act, could get a vote this month during Congress's lame duck session. The bill brings together a number of pending copyright bills in a move to undue, possibly, the principle that gives consumers the right to use small portions of others' works without needing permission or payment to do it. The act would also include an often-discussed provision letting for the use of technology to skip "objectionable" content but not commercials or promotional materials.
One of the pending bills to be included is the Piracy Deterrence and Education Act, a House bill that would criminalize "infring[ing] a copyright by… offering [copyrighted material] for distribution to the public by electronic means, with reckless disregard of the risk of further infringement." That is the language opponents say is so vague it could be used against people who buy music online from stores like Apple's iTunes.
"We really need to go back to first principles of what copyright is supposed to protect," Electronic Frontier Foundation attorney Wendy Seltzer told AVNOnline.com. "It's not supposed to protect business models, it's supposed to – as the Constitution itself says – promote science and useful arts. It's always been envisioned as a balance between copyright holders and the public. It shouldn't change by criminalizing but finding a different way to strike the balance between paying for copyright content and the freedom to use that content."
So far, it seems to make little enough difference to the music industry. "This legislation enjoys overwhelming bipartisan support in Congress," Recording Industry Association of America spokesman Jonathan Lamy wrote in an email distributed online, regarding the pending Senate measure. "Many pieces of it already have unanimously passed one house of Congress. The intellectual property industries are one of our leading national exports, and it's appropriate for the federal government to have a role in protecting those sectors from rampant piracy."
Seltzer said it all amounts to a lot of bad ideas that might be getting rushed when Congress has even less time than usual to consider them. She also said it just might be time for copyright law to go back to the future, taking a page from radio's early years to resolve the copyright knot between new technology and artistic audio and visual content providers.
"We have suggested something that doesn't even require a change in the law: a voluntary licensing proposal," she said. "If the record industry would offer a blanket license to its music allowing people to trade freely for reasonable subscription fees, that's something people would see as reasonable and would embrace it over the unpaid file sharing. Or the restricted options the music industry's now offering. Radio stations don't have to think of who they're paying for each individual song, they play the blanket license and they can play what they want. Music fans would be happy to buy into something like that."
The Motion Picture Association of America isn't saying just whom or where their first infringement litigation targets are located. "The number of targets this round, we believe, is beside the point," MPAA spokesman Matt Grossman in a statement. "This is part of an ongoing campaign that is part of a larger effort to protect the business."
But Seltzer said taking that litigation approach makes even less sense for Hollywood than it did for the music business.
"They've had a year to watch the music industry fail to shut down file sharing and in a year in which the movie industry's doing better than ever," she said. "They are offering products people are wiling to pay for, and they are not being hurt by people offering poor quality copies on a file sharing network. It comes down to an issue of control. The industry has wanted since the days of the VCR to control every product."
The proposed Senate action would also punish people bringing video cameras to movie theaters to copy films for distribution, allowing three year prison sentences, fines, or both, if the measure passes.
Other opponents of the possible Senate action include the Consumer Electronics Association, the Computer and Communications Industry Association, public-interest advocacy group Public Knowledge, and the American Conservative Union.
In fact, the ACU plans a major media campaign against the bill, whose provisions also include some compelling the Justice Department to file civil suits on behalf of the entertainment business. "It's just plain wrong," said ACU deputy director Stacie Rumenap, whose group has clout enough among Capitol Hill Republicans, "to make the Department of Justice [into] Hollywood's law firm."
The ACU in September had ripped the proposed Induce Act – a bill that would hold liable anyone thought to encourage or compel copyright infringement – as an instance of Hollywood liberals out to snuff out innovation. "What's sad," Rumenap said at that time, "is that they've got Republicans on their side."
