BOUCHER VOWS DMCA REFORM WILL PASS CONGRESS
House Internet Caucus Co-Chmn. Boucher (D-Va.) will soon re-introduce fair use legislation he first offered in waning days of 107th Congress, and he said because of growing numbers behind reform of Digital Millennium Copyright Act (DMCA) “I will predict that we will be successful.” He also said there were several areas where Congress could act if FCC declined, such as broadband and digital TV issues.
“There is an enormous, growing momentum” in favor of reforming DMCA to promote fair use, Boucher told us. During DMCA debate in 1998, Boucher unsuccessfully sought to block provision of bill that barred circumvention of copyright protections, arguing that such draconian provision would prevent numerous fair use opportunities such as space- shifting and time-shifting. In 1998 “there were very few people in the debate on the side of the user,” he said, but that has changed now. Significant change, he said, is that high-tech community is falling in behind his approach, including companies such as Gateway, Intel, Sun Microsystems and Verizon, and associations such as Consumer Electronics Assn. (CEA) and Computer & Communications Industry Assn. (CCIA).
Most of intellectual property debate in 107th Congress centered on legislation seeking to restrict content access sponsored by then Senate Commerce Committee Hollings (D- S.C.), Sen. Biden (D-Del.) and House Judiciary Courts Subcommittee ranking Democrat Berman (Cal.). “None of it was serious legislation” and none had chance to pass, Boucher said. He said he welcomed “contributions to the debate” by Rep. Lofgren (D-Cal.) and Rep. Cox (R-Cal.), both of whom introduced fair use legislation around same time as he did last fall, but he said they hadn’t built same base of support. His bill when re-introduced will have more co- sponsors.
Several leading members of House Judiciary Committee are resistant to DMCA reform, but Boucher said “I worked very hard” to get his bill referred to the House Commerce Committee, where he has had “dozens of hours” of conversation with Chmn. Tauzin (R-La.) on subject. Boucher said Tauzin was committed to reporting bill in some form, although he predicted Tauzin would want to “put his fingerprints on it.” Secondary referral to Judiciary doesn’t concern Boucher, he said, because it can’t block bill from going to floor. “Once it gets to the floor, I'm fine,” he said, citing support among House members not on Judiciary.
Broadband will continue to be important issue but Boucher felt that with FCC concluding its rulemaking on unbundled network element platforms (UNE-Ps), agency could do for broadband what Congress could not in its failure to pass Tauzin-Dingell. If FCC changes UNE-P prices, carriers would have incentive to build out broadband networks “and DSL goes forward,” he said. If FCC fails to act, however, Boucher said Congress would be ready with another Tauzin-Dingell, and he predicted it might fare better in Senate this time with Hollings no longer chairing Commerce.
Agreement for plug-and-play digital TV interconnection with broadcasters, cable providers and CE manufacturers was praised by Boucher, but he said Tauzin had prepared draft legislation for interoperability “and I believe that led to the agreement.” He said there still were details to address and said “Congress might have to mandate a standard” if the industries failed to reach complete agreement.
Same is true for DTV broadcast flag, Boucher said, which repeatedly has been touted as resolved but still has detractors. He said he believed flag was essential because otherwise “content holders might choose to hold back” premium content, reserving it for cable and satellite with its higher copy protection. FCC is conducting inquiry to ascertain (1) whether it has jurisdiction to mandate a broadcast flag and (2) whether it should do so. Boucher supported both queries by agency, but said Congress could act with standard if industries and FCC failed.