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Berman: Time to revisit the DMCA - December 13, 2007

Anytime you introduce a bill on Capitol Hill, especially one in as contentious an area as intellectual property rights, half the battle is keeping it from becoming a vehicle for everyone else's agenda. Rep. Howard Berman, chairman of the House IP subcommittee, has managed to do that so far for the PRO-IP Act, of which he is a principle co-sponsor, but largely by promising to create another vehicle for everyone else's agenda.

Kicking off a hearing Thursday on the PRO-IP bill, Berman noted there are "a number of issues," the proposed law does not address. "I don't want this bill to keep us from addressing those other issues," he added, "but I think there's a logic to addressing them in a different framework."

He then made it clear what that "different framework" will be.

"As we approach the tenth anniversary of the Digital Millennium Copyright Act, I think it's appropriate for us to reexamine some of the protections we gave to intermediaries, like ISPs and educational institutions," Berman said. He also wants to reexamine the "effectiveness of the notice and takedown" procedure.

With a district that straddles the Hollywood Hills, home to many movie and music industry figures, Berman is concerned that the DMCA's "safe harbor" protections against liability for ISPs and other intermediaries might somehow be too generous, allowing rampant copyright infringement to thrive online. But whatever his motivations, opening up the DMCA is no small step.

Almost everyone in town with an interest in copyright has a beef with the DMCA, and some have been waiting for years for a crack at amending it.

One of those, Rep. Rick Boucher (D-VA), is a member of Berman's subcommittee who has been waiting since 2005 for his FAIR USE Act to get a fair hearing. Boucher's bill, carefully introduced each year to so as to be designated H.R. 1201, after one of the more contentious sections of the law, would, among other things, permit the circumvention of access control encryption for purposes of making fair use of a work. Currently, any circumvention is prohibited, regardless of the purpose.

If you must know, by the way, FAIR USE stands for the Freedom and Innovation Revitalizing U.S. Entrepreneurship Act. And you can expect it to draw fierce opposition from the movie and music companies, as well as Chairman Berman.

Although Boucher raised some concerns about the PRO-IP Act in Thursday's hearings, he appeared content not to make too much of a fuss about it, having clearly extracted a promise from Berman to take up FAIR USE.

It's a showdown a lot of people have been waiting for. It's just too bad it will be happening in an election year, when little of substance gets done in Washington.

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