May 11, 2005
Help Consumers, Promote Innovation, and Protect Copyright: Oppose H.R. 1201
As representatives of this nation’s copyright industries, which together comprise an enormous engine of American economic growth and vitality, we are writing to convey our strong opposition to H.R. 1201 (Boucher/Doolittle), the “Digital Media Consumers’ Rights Act.” Despite its title, H.R. 1201 is decidedly anti-consumer. If enacted, it would promote “hacking” and the proliferation of “hacker tools,” undermine the incentives for both copyright owners and the people who create those copyrighted works to create and distribute the highest-quality products to American consumers. In the end, HR 1201 will leave individuals with fewer choices, less flexibility and inferior quality digital entertainment.
In simple terms, Section 5 of H.R. 1201 would effectively repeal the Digital Millennium Copyright Act of 1998 (DMCA). The DMCA was the product of more than five years of exhaustive, public debate that involved every conceivable interested party. Through the DMCA, Congress achieved a delicate balance that ensures meaningful protection for creative works in the digital world, provides a framework for a vibrant and consumer-driven electronic marketplace for creative works, and protects technology companies and service providers against unwarranted liability.
In crafting that balance, Congress considered and flatly rejected the approach of H.R. 1201. The wisdom of that decision has been proven in the years since the DMCA’s enactment, as consumers have been the beneficiaries of an unprecedented array of new alternatives for accessing sought-after digital content. Such broad-ranging opportunities would not be available in the absence of the DMCA’s carefully crafted prohibitions on circumvention. Yet H.R. 1201 seeks to tear down this balance that Congress so patiently and so carefully built into the DMCA.
By regulating consumer expectations rather than allowing the marketplace to meet them, H.R. 1201 would:
o Stifle innovation in technologies that promise more choice and flexibility for consumers. The DMCA has enabled consumers to enjoy creative works through wildly popular new technologies. The DVD, for example, came to market with the support of Hollywood studios because of the legal protections promised in the DMCA. Similarly, the success of the iPod and the iTunes Music Store can be traced to the DMCA. Online games, on-demand movies, e-books, online libraries for the disabled, and many other services are coming to market in droves because of the existence of a secure environment—rooted in the DMCA’s protections—where digital content can be protected from illicit mass reproduction and redistribution. By dismantling the legal underpinnings of this framework, H.R. 1201 would imperil the incentive to make creative works available in these and other next generation formats
o Raise prices for consumers. The DMCA protects against hacking of content protection technologies that promote flexibility and choice by enabling consumers to access creative works at a variety of price points. For example, these technologies enable consumers to permanently download and copy a song for 99¢ from iTunes, or to access an unlimited number of songs, but not make permanent copies, for $12 per month on Napster. By sanctioning “hacking” of these technologies, H.R. 1201 would substantially curtail the ability to distinguish between usage models, leaving consumers with fewer choices and forcing honest consumers to bear the higher costs imposed by “free-riders.” In other words, if H.R. 1201 were law, there might not be a “Napster To Go” and the price of a DVD would reflect the increased number of people who “Rent, Rip, and Return.”
o Undermine the protection of copyright by legalizing “hacking.” Proponents of H.R. 1201 claim it legalizes “hacking tools” only for “noninfringing” uses. But as Congress recognized when it enacted the DMCA, the very same hacking tools that could theoretically be used to facilitate a noninfringing use can be, and in fact almost always are, used to engage in infringing uses. For example, the entertainment software industry uses an array of technological protection measures (TPMs) to regulate unauthorized access to video games and prevent piracy. H.R. 1201 would legalize hacking devices such as “mod chips” and “game copiers” which circumvent access controls and allow for play of counterfeit games, paving the way for massive piracy. By eliminating the ability of copyright owners to protect their works in digital formats, H.R. 1201 would leave copyright owners with little incentive to invest substantial risk capital in creating and distributing works they cannot protect.
o Misinterprets the Supreme Court’s Betamax decision. H.R. 1201 would enact into law one sentence of a lengthy, complex opinion. As Justice Ginsburg recently pointed out, “I don’t think you can take from what is a rather long opinion, and isolate one sentence, and say, ‘Aha, we have a clear rule.” However, H.R. 1201 would apply this over-simplified reading of the law to areas never before governed by the Supreme Court’s Betamax precedent.
o Fails to recognize existing exceptions to the DMCA. In drafting the DMCA, Congress recognized that business, personal and public users might need to circumvent encryption technology for specific purposes. Six exceptions were built in, including exceptions for libraries, interoperability, security research, personal privacy and the protection of minors. Moreover, the Copyright office reviews and adds exceptions every three years. So far, four new exceptions have been added, and as technology changes, we can assume new, carefully balanced additions will be added.
o Undercut foreign protection of American intellectual property. The DMCA has been a model for other countries seeking to provide a fair framework for the exploitation of digital works. Moreover, it has been the basis for bilateral and multilateral agreements that provide minimum standards for protection of American intellectual property abroad. This bill, if enacted, would send exactly the wrong message to the international community at a time when our biggest trading partners are turning to revisions in their own laws that will govern the protection of American works. The United States cannot afford to send a message to Russia, to China, and to hundreds of other countries that our support for intellectual property within our own borders is waning.
With 2.6 billion infringing files traded each month on Peer-to-Peer networks, Congress should be looking for ways to limit piracy (or even to keep it from getting worse), not to facilitate it by undermining what limited technical protections do exist today. We urge you to seriously consider the adverse effects of this proposal and opt to protect consumer choice in the marketplace by rejecting H.R. 1201.
American Federation of Musicians
American Federation of Television and Radio Artists (AFTRA)
American Society of composers, Authors and Publishers (ASCAP)
American Society of Media Photographers
Association For Competitive Technology
Association of American Publishers
Broadcast Music, Inc. (BMI)
Commercial Photographers International
Department for Professional Employees, AFL-CIO
Directors Guild of America
Entertainment Software Association (ESA)
Independent Film and Television Alliance
International Association of Professional Event Photographers
Major League Baseball
Motion Picture Association of America
-Metro-Goldwyn-Mayer Studios Inc.
-Paramount Pictures Corporation
-Sony Pictures entertainment, Inc.
-Twentieth Century Fox Film Corporation
-The Walt Disney Company
National Academy of Recording Arts and Sciences
National Association for Stock Car Automobile Racing (NASCAR)
National Basketball Association
National Football League
National Music Publishers Association (NMPA)
Producers Guild of America
Professional Photographers of America
Recording Industry Association of America
Screen Actors Guild
Software & Information Industry Association (SIIA)
The Songwriters Guild of America
Writers Guild of America, West