May 12, 2004 | By Fred von Lohmann

H.R. 107 Comes to Life

As of today, DMCA reform has a very real chance of passing the U.S. Congress. The biggest ray of hope for those of us who care about fair use came not from what happened at the hearing itself, but rather, at a lunch session that took place during a recess in the testimony of the 13 (!) witnesses. It was there that Rep. Joe Barton, Chairman of the full House Energy and Commerce Committee and a co-sponsor of H.R. 107, announced that he intends to see the bill marked up (a prerequisite to approval), passed by the subcommittee, passed by the full committee, passed by the full House of Representatives, and ultimately signed into law by the President.

This year.

Needless to say, Rep. Barton's support isn't enough to guarantee all of these results -- but because he is committee chairman, his support means a great deal. In addition, the relevant subcommittee today heard from consumers, the consumer electronics industry, librarians, and public interest groups (as well as one former congressman, speaking in his personal capacity as an avid home recordist!). Their message, as boiled down by the American Library Association's Miriam Nisbet: "In sum, the DMCA is broken and needs to be fixed."

Big Content was there in force, too. The MPAA's Jack Valenti declared that "fair use is alive and well." The RIAA's Carey Sherman had the temerity to say that the DMCA only prohibits pirates' "black boxes." These views were echoed by representatives of the Business Software Alliance and the video game industry.

But I'd say the majority of the subcommittee just wasn't buying the "sky will fall" stories being told by Big Content. Members repeatedly asked why it should be illegal to make a single back-up copy of a DVD. They asked why it should be illegal to edit a DVD you own to remove "smut." They asked whether this impasse was the product of the entertainment industry's failure to deploy new business models. And Rep. Davis went so far as to ask Larry Lessig whether we should be thinking about alternative systems that would compensate rightsholders without insisting on digital lockdown or mass prosecutions.

Today was a good day for fair use, for consumers, and for our nation's tradition of balance in copyright law. Stay tuned for more.


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