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Copyright Pact Not Music to Some Ears

January 15, 2003

Copyright Pact Not Music to Some Ears

Brenda Sandburg
The Recorder

The recording and technology industries are touting a new agreement that calls for voluntary placement of copyright protection measures in digital products.

The move is designed to deflect Congress from forcing such copyright protection measures. But many lawyers say the deal isn't much to cheer about, particularly since it doesn't include the 800-pound gorilla of content—the motion picture industry—nor does it address the issue of "fair use" of copyrighted material.

"It would be nice if that [legislative truce] would cause a rethinking of the litigation wars, but I wouldn't hold my breath," said Laurence Pulgram, a partner at Fenwick & West who represented Napster Inc. in its battle with the recording industry.

The truce may not reach all the players, and "there's still going to be a lot of questions about what is fair use and what technology consumers are entitled to enjoy," he said.

The Recording Industry Association of America, the Business Software Alliance and the Computer Systems Policy Project announced their agreement Tuesday at a press conference in Washington, D.C. The deal specifies seven principles that the groups said would guide their activities in the new session of Congress.

Most significantly, the groups said technical protection measures dictated through legislation or regulations are not practical. Instead, they said, they favor collaboration to develop "unilateral technical protection measures that limit unauthorized access, copying or redistribution of products without government-imposed requirements for the incorporation of specific functionality in a computer or other device."

Content owners and technology companies have long argued over the best way to prevent the theft of copyrighted material in the digital realm. The battle—characterized as Hollywood versus Silicon Valley—reached a fever pitch last year when members of Congress took sides in the debate and introduced competing bills. Some of the players are now hoping to avoid legislation and reach a compromise. But the Motion Picture Association of America, which has led the battle on behalf of copyright owners, apparently is still pushing for legislation.

"We are not prepared to abandon the option of seeking technical protection measures via the Congress or appropriate regulatory agency, when necessary," MPAA President and CEO Jack Valenti said in a statement on Tuesday's agreement.

The motion picture industry backed legislation introduced by Sen. Ernest Hollings, D-S.C., last year that would have required manufacturers to include copy-protection technology in television sets, cable boxes, personal computers and other digital media devices. Hollings has not yet reintroduced the bill in the current Congress and could not be reached for comment Tuesday.

On the opposite side of the battle, Rep. Rick Boucher, D-Va., reintroduced legislation last week that seeks to protect consumers' fair use of copyrighted material. The Digital Media Consumers' Rights Act would allow consumers to circumvent protection technology for fair use. It would also permit the manufacture and sale of technology that gets around copyright protection measures if the technology is capable of "substantial non-infringing use."

Intellectual property lawyers who have been on the opposing side of the recording industry were critical of the agreement announced Tuesday, saying it failed to address the issue of fair use.

Wendy Seltzer, a staff attorney with the Electronic Frontier Foundation, said content owners would continue to claim that companies are violating the Digital Millennium Copyright Act by circumventing protection technology.

"The DMCA has dramatically restricted consumer rights," Seltzer said. "If they're not stepping back from that, it is hard to call this a compromise."

Mark Lemley, a professor at Boalt Hall School of Law, said there is still a chance that legislation similar to Hollings' measure may be introduced. He said the debate over whether Congress should be involved in telling technology companies how they can innovate is part of a bigger picture.

"There's been strong pressure by content groups to try to stop or change technology innovation as a means to stop copyright infringement," Lemley said. "Industry needs to find ways to tackle piracy directly without shutting down software innovation in the process."

Business Software Alliance spokeswoman Jeri Clausing said the agreement would not have any immediate impact on consumers.

"This doesn't change anything," she said. The agreement is "ratcheting up the commitment with the RIAA to look for new technology, new ways to work together to let consumers use materials as they wish while protecting copyright."