McCain Blocks Senate Consideration of Copyright Bill

A key senator vowed this week to keep a hold on controversial copyright legislation until lawmakers address his concerns, which include the possibility that the language would ban fast-forwarding through TV commercials. Senate Commerce Committee Chmn. McCain (R- Ariz.) is blocking passage of several bills combined by the Judiciary Committee last week for a Senate floor vote. In a Senate floor statement, McCain justified his hold by citing concerns from consumer and fair-use groups. The move reflects the latest of many struggles between McCain’s committee and the Senate Judiciary Committee on copyright issues.

The combined bills are called the Intellectual Property Protection Act (IIPA). IIPA is made up mainly of 2 bills by House Judiciary Courts, Internet & Intellectual Property Subcommittee Chmn. Smith (R-Tex.): (1) HR-2391, the Cooperative Research & Technology Enhancement Act (CREATE Act), a bill that amends patent law and isn’t very controversia (2) HR-4077, a more contentious bill that lowers the prosecutorial threshold for pursuing file- sharers. That bill, which cleared the House last month, was amended to include language protecting ClearPlay, a service that allows viewers to skip objectionable content in DVDs. The company is litigating with the motion picture industry over whether the service is legal. McCain supports a carve-out for that type of service and fears the bill as written would limit fair use.

“I fear that the very exemption designed to achieve this laudable goal [of skipping objectionable content] simultaneously creates an implication that certain basic practices that consumers have enjoyed for years -- like fast-forwarding through advertisements -- would constitute criminal copyright infringement,” McCain said in his floor statement. “Americans have been recording TV shows and fast-forwarding through commercials for more than 30 years,” he said. “Do we really expect to throw people in jail in 2004 for behavior they've been engaged in for more than a quarter century?”

McCain said he planned to work with IIPA supporters to find alternative language, but added that until then “I do not intend to remove my hold on these bills.” He also took the content industry to task, saying he planned to work with other senators to address “the uncertain liability created for manufacturers that bring other innovative and pro-family products to market in the face of continual threats of extinction from powerful interests who seek to thwart their entry.” While groups such as Public Knowledge have many complaints against the combined legislation, a spokesman for the Senate Commerce Committee said McCain’s objection was limited to the issue of skipping commercials.

McCain’s concern about IIPA outlawing the skipping of commercials echoes an argument made last week by Public Knowledge, and in fact McCain cited Public Knowledge (and Consumers Union) in his speech. Talking points by Public Knowledge sent out to encourage e-mails to Capitol Hill say the new language was a result of the “entertainment industry,” which “hijacked” the original Smith language of the Family Movie Act and “turned it against consumers and the tech community.” Although the courts haven’t resolved the question, Public Knowledge contended that using technology to skip objectionable content was already legal. With the latest language in HR-4077, however, the group argued that “the affirmative right to watch and skip parts of the content that a consumer has legally obtained only exists if certain conditions are met; no commercial or promotional ads may be skipped… This sets the functionality of the everyday VCR and TiVo on its head.” MPAA did not issue a response by our deadline.

Other provisions in IIPA have drawn the ire of CEA and the Computer & Communications Industry Assn. (CCIA) but weren’t addressed by McCain. Those include the fact that HR-4077 makes anyone sharing 1,000 or more copyrighted files subject to prosecution. Another bill added to IIPA has opponents among consumer and fair-use groups. S-2237, the Protecting Intellectual Rights Against Theft & Expropriation Act by Judiciary Committee ranking Democrat Leahy (Vt.) cleared the Senate this summer. It would give the Justice Dept. the authority to pursue civil cases against infringing file-sharers. While not endorsing S-2237, Leahy in a recent Senate floor statement criticized the DoJ for launching a major intellectual property initiative (see separate report, this issue).

Possible consideration of IIPA came as the Senate was in a rush to recess for the Nov. election. The provision objected to by McCain, Sec. 212(b)(3)(B), states that “no changes, deletions or additions are made by such computer program or other technology to commercial advertisements, or to network or station promotional announcements, that would otherwise be performed or displayed before, during or after the performance of the motion picture.” The language was added at a House Judiciary Committee markup to address future technology that might skip objectionable content in media other than DVDs. It’s argued by the content industry that the language would prevent a new technology with commercial-skipping technology from seeking legal shelter in the Family Movie Act, but it wouldn’t prevent existing commercial skipping. The debate is reminiscent of a fight between the content industry and ReplayTV, which had a PVR that could skip commercials entirely. That and an Internet redistribution feature sparked a content industry suit against ReplayTV; the company later was sold to D&M Holdings, which dropped those features from ReplayTV PVRs.