Rep: Give Fair Use a Fair Shake
By Declan McCullagh

12:55 p.m. July 25, 2001 PDT

WASHINGTON -- Rep. Rick Boucher wants to spring a Russian programmer from jail.

Boucher, a maverick Virginia Democrat, is hoping to rewrite a federal law that led FBI agents to arrest Dmitry Sklyarov in Las Vegas, Nevada, last week on copyright felony charges.

"It's a broad overreach to have a person arrested under the federal criminal laws simply because they made software that circumvents a technological measure," Boucher said. Boucher said his office will draft a bill to be introduced later this year.

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The criminal law in question is the Digital Millennium Copyright Act, which was obscure enough when Congress enacted it in 1998, but has emerged as one of the most important and far-reaching technology regulations. Sklyarov is charged with trafficking in a program to bypass Adobe's copy protection for e-books, a federal felony under the DMCA.

"I think the current case adds impetus to the growing effort to fashion an amendment to the DMCA that would restore the classic balance (of fair use rights)," Boucher said.

That promises to be anything but a trivial task. Leaders of the House and Senate subcommittees that oversee copyright law said Tuesday that they would not consider any changes to the DMCA.

Because of that fierce opposition, Boucher says he may not introduce his DMCA amendment until as late as next year -- and because Congress may delay considering it -- it won't free Sklyarov from jail anytime soon.

"The law is performing the way we hoped," said Rep. Howard Coble (R-North Carolina), chairman of the House Judiciary's subcommittee on intellectual property. Sen. Dianne Feinstein, a California Democrat and Coble's counterpart, said through a spokesman that she is "not looking to change" the law.

In the House, Coble is the fifth-highest recipient of music industry cash, according to opensecrets.org.

Feinstein is the fourth-highest in the Senate, and at $127,000 ranks second on the movie industry's donations list. Only Sen. Hillary Clinton (D-New York) receives more: $213,000.

What that all translates to is an uphill battle against copyright holders, who say they'll do their best to prevent a DMCA repeal.

The Recording Industry Association of America, the Motion Picture Association of America, the Business Software Alliance -- its members include Adobe, Novell, and Microsoft -- and the Association of American Publishers lobbied for the DMCA while it was in Congress.

"Of course we would oppose that," said Allan Adler, vice president of the Association of American Publishers, when asked about Boucher's proposal.

"We don't question the value of people demonstrating flaws in commercially available products. But is it necessary to make what is being protected vulnerable in order to prove a weakness?"

For his part, Boucher acknowledges the strength of the opposition: "I can assure you that any legislation to modify Section 1201 would be vociferously opposed by a united content community. It would be a major battle in the intellectual property field. It is not a battle that should be joined until we have a sufficient base of support."

Section 1201 includes the first few paragraphs of the DMCA. They say: "No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

It doesn't require that the person bypassing the scheme do it to infringe someone's copyright. DMCA critics say users should be allowed to circumvent technological protection for research, criticism, or fair use purposes, such as reading an encrypted e-book on another computer.

Boucher says his bill will modify, not repeal the DMCA, adding that "everyone should agree that circumventing the copyright for the purposes of infringement should be unlawful." His legislation could be as simple as inserting a "for purposes of copyright infringement" phrase in the U.S. Code.

Says Boucher: "It will be modest. It will be legislation to do what I urged be done when we passed the law in 1998, to restrict 1201 to only those instances of circumvention that are limited to infringing a copyright."

Elected in 1982, Boucher represents the mountainous area of southwestern Virginia west of Roanoke. He's become one of the most influential Democrats on technology topics: He co-founded the House Internet Caucus in 1996, successfully secured federal money to wire southwestern Virginia schools to the Net, and is a member of the House subcommittee that oversees intellectual property.

The prospect of Sklyarov, a programmer at Elcomsoft who friends say is married and has two young children, spending up to five years behind bars outraged programmers, hackers and open-source activists. Hundreds took to the streets on Monday to demand that the government drop the charges.

Geeks are sure to become part of a new coalition that Boucher admitted he's quietly building. Another steadfast group of allies will be librarians.

The American Library Association and other library, educational and academic groups were part of the Digital Future Coalition, a now-defunct group that opposed the DMCA.

"We always thought that 1201, the way it was drafted, was unfair and overly tilted toward the protection of content and not sufficiently concerned with the protection of fair use," says Rick Weingarten, director of the ALA's office of information technology policy.

Says Weingarten: "We have always been unhappy with 1201 as it's worded in the law."

Peter Jaszi, a law professor at American University and one of the DFC's former organizers, says: "This prosecution is an example of the problems the DFC tried to point out when the DMCA was being written.... I don't think something this bizarre and aberrant can remain on the books as a law."

Those are fighting words to copyright lobbyists and their supporters, who have depicted the DMCA as a fair and reasonable compromise that, like a sleeping elephant, must not be disturbed.

"As far as I know there have been very few complaints from intellectual property holders," Coble, the chief sponsor of the DMCA, said in an interview Tuesday. "I am also encouraged by the Department of Justice's actions in this matter to enforce the law."

"Nothing has changed since 1998 that would lead members of Congress to upset the careful balance that was struck," says Bob Holleyman, head of the Business Software Alliance.


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July 25, 2001

Sklyarov Release in Feds' Hands
July 24, 2001

Release the Russian, Adobe Says
July 23, 2001

Adobe Tries to Quell Protest
July 21, 2001

Hacker Arrest Stirs Protest
July 19, 2001

Russian Adobe Hacker Busted
July 17, 2001

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