COPYRIGHT BILLS MOVING ON HILL THIS WEEK

Several House and Senate committees this week plan to examine, and in some cases approve, legislation addressing copyrighted material online. A House subcommittee plans a hearing on a bill promoting fair use rights, 16 months after its introduction. Separately, bills designed to increase law enforcement protection of copyrights are scheduled to be approved in the House and Senate Judiciary Committees.

HR-107 by House Internet Caucus Committee Co-Chmn. Boucher (D-Va.) is the subject of a House Commerce Subcommittee on Commerce, Trade & Consumer Protection hearing Wed. It was introduced in Jan. 2003, but its roots go back much further. The bill’s main goal is to amend the Digital Millennium Copyright Act (DMCA) to permit circumvention of copy-protection technology to engage in fair use of copyrighted material. Boucher introduced a different version of the bill in the 107th Congress, but originally offered it -- unsuccessfully -- as an amendment when DMCA was being debated in 1998. Boucher told us he rewrote HR-107 from its 107th Congress version to ensure it would be routed to the House Commerce Committee, not the Judiciary Committee, which was considered less sympathetic.

When Boucher introduced the bill last year, then-House Commerce Committee Chmn. Tauzin (R-La.) promised Boucher a hearing on the legislation. But Boucher had to wait until Rep. Barton (R-Tex.) took over the committee for the hearing to happen. The Wed. hearing is on the bill itself, not just the topic of fair use. Formal legislative hearings typically are for bills likely to reach markup. The hearing is 10 a.m., Rm. 2123, Rayburn Bldg.

HR-107 long has been opposed by the content industry, which argues that the DMCA is a careful balancing of fair use rights vs. copyright holder rights, and permitting people to disable copy-protection mechanisms would invite not only fair use of works but piracy. Boucher, backed by groups such as CEA and Public Knowledge, argues that as new technologies make possible more space- and time-shifting already accepted as protected fair use, the DMCA poses the risk that consumers won’t be able to exercise rights with digital content they're used to having with older media.

While it’s unclear if HR-107 will be marked up, 2 bills designed to toughen copyright law are set for markup this week. The Senate Judiciary Committee is hoping it will succeed in its 3rd attempt to approve S-1933, the Enhancing Federal Obscenity Reporting & Copyright Enforcement (EnFORCE) Act by Committee Chmn. Hatch (R-Utah), ranking Democrat Leahy (Vt.) and Sens. Cornyn (R-Tex.) and Feingold (D-Wis.). Two weeks ago the committee approved 4 other copyright bills but postponed S-1933 to build support. Last week, their markup was cancelled for reasons unrelated to the legislation. S- 1933 is expected to be marked up 9:30 Thurs. in Rm. 226, Dirksen Bldg.

S-1933 would require the Justice Dept. to report to Congress on its child online pornography prosecutions and online copyright cases, and ensure that each department unit investigating computer crimes has at least one agent versed in copyright law. Online copyright infringers could face tougher financial penalties: Infringement would be redefined, permitting every song on an album to be considered a separate infringement, even if downloaded in one session. Finally, the bill would expand an existing antitrust exemption that permits record labels to collaborate in offering digital download services to permit record companies and music publishers to negotiate royalty rates for new distribution methods.

That increased antitrust waiver has drawn the wrath of some webcasters, including the Webcaster Alliance. Alliance Pres. Ann Gabriel wrote senators shortly after the bill’s introduction, calling it an effort by RIAA to stifle competition and technology. The Alliance has a suit pending against RIAA charging anticompetitive behavior as a result of a webcasting rate decision approved by the Librarian of Congress, which was based solely on a private-sector agreement between RIAA and Yahoo. Gabriel said the rate ruling “shut out small webcasters,” and extending the record industry’s antitrust exemption would further that. RIAA Pres. Cary Sherman at the Future of Music Summit last week said an antitrust expansion was necessary to permit new technologies and distribution methods, from DVD Audio to CD- burning kiosks in malls.

Gabriel also faulted the RIAA for including an exemption in the bill targeting online pornography on P2P networks, saying that “has to be one of its most public, shameless and twisted efforts to date.” Gabriel cited a U.S. Gen. Accounting Office (GAO) study that found pornography on P2P networks isn’t necessarily more dangerous than that on websites. How much of a problem pornography is on P2P was the subject of much debate on the Hill last week.

The House Judiciary Committee will meet Wed. to mark up another copyright bill that it didn’t get to last week. The bill is HR-3632, the Anti-Counterfeiting Amendments Act by House Judiciary Courts, Internet & Intellectual Property Subcommittee Chmn. Smith (R-Tex.). It outlaws reproduction of watermarks and other security measures designed to ensure authenticity of intellectual property. Smith at a March 31 subcommittee markup declined to expand the bill to include digital marks for online piracy, but subcommittee ranking Democrat Berman (Cal.) said he might seek to amend the bill at full committee to do that. The substitute amendment, however, keeps the bill restricted to physical piracy, while changing slightly the definition of the covered material. Nothing would prohibit Berman or another member from offering a digital piracy amendment at the markup. It’s 10 a.m., Rm. 2141, Rayburn Bldg.