Mr. BAND. As I said before, NetCoalition does not have a position on 1201 but if we are taking more time on 1201, we definitely should take more time on the broadcast flag and other digital rights mandates. Ms. SOHN. Yes, we should pass 1201 and we should let the market work. Mr. DELONG. 1201 would not only legitimize the idea of fair use it would Ms. BONO. Yes or no, I'm sorry. I made the guys I am opposing say yes or no so I Mr. DELONG. You should give it another century. Mr. HIRSCH. We agree. We think that you should let the marketplace work this out. Mr. AIKEN. The Authors Guild has no position on this. Ms. BONO. All right, so obviously as one would expect with a— yes, 5 to 2, well gee did it start out that way? We will not mention that. But again, I-my last question is for Ms. Adler. How do you preserve books? Why-I think that there is really in your argument to me there is a huge underlying issue of the tangible versus non-tangible. How do you-does a publisher give you a second copy of a book or if somebody destroys a book is the publisher do they have to give you another book for free? Ms. ADLER. No. The item that is in our collection is what we work with. And we preserve tangible items under very different circumstances. There is Section 108 of the copyright allows us under certain circumstances to preserve books and different formats under different circumstances. And sometimes we look to fair use to preserve as well if there are circumstances under 108 that do not help us preserve those items. But in the case of books where the Copyright Act explicitly gives us that privilege, if you are asking how do we physically go about it, there are a number of techniques that we undertake related to preservation. Many books printed early in the century were printed on acidic paper and they are deteriorating very quickly. Ms. BONO. Okay. But that is also public domain anyway by now. Correct? Ms. ADLER. Not necessarily, some are, some are not. And what we are trying to do, there is in fact a program that the National Endowment for the Humanity supports called the Brittle Books Initiative which is now focused on both books microform and digital as a way of preserving these cultural resources in our libraries for future generations of users. Ms. BONO. So does that-but does that involve the whole copy of that copy where the artist Ms. ADLER. Yes. Ms. BONO. [continuing] does not receive anything? Ms. ADLER. Yes, because the library has purchased that information resource previously. And we have legitimately purchased it tangibly and have the rights to do that under the Copyright Act. Ms. BONO. But if you had to buy a new book, would you ask the author to exempt that purchase from his right to earn money off of that new book, if you were to buy a second copy? Ms. ADLER. We often do buy second copies in libraries. CO Ms. BONO. And do you pay the author for that work, the second copy? Ms. ADLER. Usually we are not buying through-from authors directly in libraries, we are buying through large publishing companies then those royalties will go through the publishing companies back to the author. Ms. BONO. So you do not ask for some sort of exemption because you have already bought the intellectual property portion of it once before. Correct? Ms. ADLER. We have not-we have bought the book, we have not bought the intellectual property that the author may have. We have certain exemptions to use it legitimately through the Copyright Act. Ms. BONO. Thank you. Mr. Chairman, I see that my times has expired. Thank you. Mr. STEARNS. The gentlelady's time expired. We have the author of the bill who is not a member of the subcommittee but a member of the full committee and we are going to allow Mr. Boucher to ask questions. Mr. Boucher? Mr. BOUCHER. Well Mr. Chairman, thank you very much for recognizing me even though not a member of the subcommittee and I also want to thank you and Chairman Barton for scheduling this hearing to examine the importance of fair use to all people in our society. I want to say a particular word of thanks to the witnesses for taking their time with us this morning and particularly thank those who in the course of their comments have mentioned the need to enact H.R. 1201. H.R. 1201 really proceeds from a fairly straightforward assumption and that is when people purchase digital media, they should be able to use that media for lawful purposes and technical protection measures should not be put in their way as long as the purpose for which they intend to use the CD or the DVD or other media they purchased is entirely lawful and would not in any way violate the copyright law. I was particularly taken by the comments of Ms. Sohn during her testimony in which she outlined a number of instances in which people who purchase media would need to be able to bypass a technical protection measure to use that media fully and to completely enjoy the rights that should go to the purchaser of that product any time that media is bought. Do you happen to have that list with you again? I would like for you just to emphasize that both for the record and to the members of the subcommittee if you happen to have it handy. Ms. SOHN. Absolutely, and I would also include Professor Jaszi's example that teachers try to use excerpts of DVD's and cannot do that without violating the DMCA. But let me repeat the list. A consumer cannot rip songs from copy protected CD's to their personal computers or iPods. A consumer cannot make a digital copy of a DVD for playing back on their video iPods, cell phone, or other portable device. A consumer cannot make a backup copy of a copy protected CD or DVD. A consumer cannot play legally downloaded music on a competing mp3 player or computer so if you, you know, buy iTunes, you cannot play it on a Real Player and vice versa. And finally, a consumer cannot remove from a computer malicious digital rights management tools which may have spyware in them like the now infamous Sony BMG root kit DRM. So that is just, I think that is just six or seven but there are a lot more which I would be happy to provide if the subcommittee would so want. Mr. BOUCHER. Well thank you very much, Ms. Sohn. I think those are good and graphic examples of why the technological protection measure provisions of Section 1201 stand in the way of the ability of digital media purchasers to use the media in lawful forms in a manner that enhances their enjoyment in the work and therefore the value in the work itself. Let me get members of the panel to respond to what is typically the argument raised in opposition to H.R. 1201 and that is that somehow if 1201 is adopted and technical protection measures can be bypassed for lawful purposes, that this change in the law rebalancing as I think it is the rights between the owner of the content and the user of the content would somehow encourage piracy. I mean this is the argument that we hear that allowing bypass for a lawful use would therefore encourage people to bypass for unlawful uses. Who would like to respond to that argument? Mr. Shapiro? Mr. SHAPIRO. I can only respond by saying I have no clue the connection with piracy, it just does not exist. But I do want to add one to Gigi's list which is my personal favorite and one of the reasons I do this with such passion is that when you are watching a movie, a DVD, to fast forward through the ads for the upcoming movies is something you should be able to do. And that is something we hear from a lot of frustrated consumers who buy DVD players and they want to know why they cannot. Mr. BOUCHER. All right, thank you. Mr. Band? Mr. BAND. Even though NetCoalition does not have a specific position on H.R. 1201, I just wanted to note that before we heard about CSS which is the encryption system on DVD's and we heard about the huge market for DVD's which I think someone said was about a $25 billion market now, it turns out that there is an easy way to get around CSS. It is called DECSS, and it is widely available on the internet. If you were to do a Google search, you would probably find, you know, 300,000 sites on the internet where DECSS can be downloaded not withstanding the fact that it is widely available, you still have this $25 billion market. So I think the point is is that most people want to follow the law and even though there are there is a way to break the law using DECSS to circumvent the DVD's for unlawful purposes, most people choose not to do that. Mr. BOUCHER. Well let me simply underscore that H.R. 1201 clearly says that the only time a person may bypass technical protection is if they are doing so for a lawful purpose, for example exercising a lawfully protected fair use right. If a person is bypassing for an unlawful purpose in order to commit piracy of the work, that person is just as guilty under H.R. 1201 as he would be under current law. And that being the case, I really do not see any validity at all to the argument that if 1201 is adopted it would encourage piracy. The act of piracy would remain just as unlawful under this bill as it currently is. C The gentleman who raised his hand, I am so far away I cannot see your sign. Mr. HIRSCH. Rick Hirsch with the Entertainment Software Association. Mr. BOUCHER. Yes. Mr. HIRSCH. My job at ESA, among many things, is I am responsible for our enforcement programs with respect to piracy of game product. And, you know, one of the consequences of permitting, I thought the exercise that Chairman Stearns engaged in with the Professor at the beginning was very interesting because we kept moving the line along in terms of the many different copies that could be made. At what point would something cross over the line from fair use into non-authorized use that is not fair. Part of the problem here from an enforcement standpoint is that permitting circumvention of access controls for certain purposes albeit legitimate threatens to open the flood gates to piracy and it is not that every consumer is a pirate, it is just from an enforcement standpoint we cannot be in everybody's homes to determine whetherwhat purpose they are putting these uses to. And the way we deal with that, and believe me we are our industry is a real confluence of technology companies and software and content companies so we seek to address that through the use of technology to promote the uses that the game community is seeking. Mr. BOUCHER. Well I appreciate your comment and my time has expired. Let me simply say that it is hard for me to imagine that if the law is on the books in very clear form saying that to bypass for an illegal purpose is illegal, that somehow adopting that law allowing bypass for legal purposes would in any way encourage the illegal use. Mr. Chairman, I thank you again for having the hearing and permitting me to ask questions. And I thank the witnesses for their participation. Mr. STEARNS. I thank the gentleman. We are now out of time with—there is no one else that seeks any further recognitions or questioning. We want to thank your forbearance in all the members. I would just note that a parting comment that I have as chairman that if we had a unified DRM system that was clear and conspicuous for consumers, it is a possibility that some of this could be resolved and in all deference to the chairman so I would say to industry that sometimes if you do not want legislation, just work together to get this unified DRM system that all consumers can understand. With that, the subcommittee is adjourned. [Whereupon, at 12:20 p.m., the subcommittee was adjourned.] [Additional material submitted for the record follows:] Ch OSAIA Open Source And Industry Alliance w## 010--) g Before the Subcommittee on Commerce, Trade, and Consumer Protection Regarding Fair Use: Its Effects on Consumers and Industry Statement of Edward J. Black Computer & Communications Industry Association On behalf of the Computer & Communications Industry Association and the Open Source & Industry Alliance, I appreciate the committee's consideration of this testimony on the fundamentally important issue of fair use in copyright law. As the Supreme Court reaffirmed in its recent Grokster opinion, promoting copyright must be balanced against promoting innovation. The computer and communications industry recognizes this need for balance. Robust intellectual property protection is required to encourage innovation, satisfy consumers and produce profits. Accordingly, CCIA has worked for over 30 years to protect necessary intellectual property rights. At the same time, the right to innovate without persistent litigation sustains the U.S. information technology industry and guarantees its global competitiveness. The Fair Use Doctrine is one of the primary means by which copyright law vindicates that right. Fair use represents the public's right to engage, without a the CCIA & OSAIA Statement, Nov. 16, 2005 Page 1 of 9 |