Lawmaker Revs Up Fair-Use Crusade

Rep. Rick Boucher is a rarity in Congress when it comes to digital media. He's taken the side of consumers -- not Hollywood and the music industry -- in the sundry controversies surrounding digital entertainment.

When it comes to file sharing, Boucher says he'll fight attempts to stifle it.

He thinks tech companies shouldn't be held liable for products that can be used for unlawful purposes, like pirating media.

He says the balance of copyright law has tipped too far toward the entertainment companies' interests, hampering consumers' rights to use digital media.

And he wants government sponsorship of universal broadband.

While other lawmakers have long-standing relationships with the entertainment industry, whose chief concern is piracy, Boucher sees his pro-technology policies as a way to further education, communication and job creation.

Boucher, a Democrat representing the rural 9th District of Virginia, has introduced a bill to restore some of the fair-use rights taken away by the Digital Millennium Copyright Act.

Boucher was also one of only six candidates supported by IPac, a new, nonpartisan political action committee concerned with intellectual property. IPac favors candidates working for a better balance in copyright law between the rights of creators and those of consumers.

Boucher recently stopped by the Wired News office for a chat about broadband, copyright and the continued clashes between the entertainment and technology industries over peer-to-peer networks.

Wired News: The MGM v. Grokster case now before the Supreme Court has put file sharing in the spotlight. What are your thoughts on peer-to-peer file sharing?

Rick Boucher: First of all I am going to fight, tooth and nail, any effort to hobble file sharing. I mean, if the attack that the industry makes is against file sharing per se, I'm going to fight that, because there are very legitimate uses of file sharing.

Skype is a file-sharing application and that's used by millions of people. (Universities) are using file sharing as a way to disseminate research papers and other legitimate items. Getting away from centralized servers and going to peer-to-peer communications all across the map means the communications are faster and much more user-friendly. I will predict that within a number of years, most of the uses of file sharing are going to be legitimate.

WN: Fair use is all well and good, but isn't the entertainment industry saying, "You can use this stuff, but we are not obligated to present it to you in a form that is easy to copy?"

Boucher: But ... what they are able to do ... is prevent you from using it altogether. All that a creator of digital content has to do is guard it with a very simple technical measure and ... then you may not circumvent that for any purpose. And so the creator of content can take everything to a pay-per-use (format) and that means nothing is free on the library shelf anymore.

This is why librarians so strongly support my bill, they see that coming. History teaches us that when industry has a particular power, if they can make money using that power, that's what they'll do. And in this instance, the content industry has the power to prevent any fair use of their material and I have no doubt that's exactly where they'll go.

WN: Do you feel any sympathy for the entertainment industry? If an individual gets hold of just one copy of a work, it can be distributed widely. Take Revenge of the Sith -- thousands of people had it even before it debuted in the theater. This is an unprecedented kind of access to artistic works.

Boucher: First of all, while the arrival of the internet creates a potential hazard and peril for content creators, it also invests in them broadening abilities. It becomes another distribution medium that they can use and they need to do that. I have been saying (that) to the recording industry every time they have come crying to us (saying), "Oh piracy is costing us this, that and the other and we need to do something about it."

I would spend my time as a committee member when I was addressing them saying, "OK, why don't you do something about it yourself? Why don't you put your entire inventory up on the web and make it available in a user-friendly format for a reasonable price per track and get away from clinging to this old, outdated business model of selling the whole CD?"

Do I have sympathy for them? Not when they're clinging to a relic and when that's getting in the way of making good current business decisions.... They can make a fortune if they do that.

The other point to make is, they are asking us to do something that not only is it unwise from a policy standpoint for us to do, and that is inhibit file sharing, which has legitimate uses. But even if we thought it was wise from a policy standpoint, they are asking us to do something that we really can't.

We don't have -- within the reach of American law -- control over these networks. I mean, if we control one who happens to be a resident of the U.S., or people who generate the software ... it won't be a matter of weeks until a network like that would arise in some island nation where we don't even have commercial relations, much less extradition treaties.

And so we can't at the end of the day do anything that's really meaningful to help. We can make ridiculous laws but we are not going to be able to stop the problem....

The other thing that makes sense is for the industry actually to consider some kind of compulsory license.... If I were the recording industry I'd think seriously about doing that. People are going to be engaged in file sharing anyway: They may as well get some compensation for it. It's not a perfect solution to their problem, but then there isn't one at this point.

WN: What do you think of the state of copyright law right now? There are alternatives like Larry Lessig's Creative Commons option, which gives authors the option of choosing a more flexible copyright license. Do you think there will be a makeover of copyright, or is that off the table?

Boucher: I happen to think Larry is right. In the main I agree with what he is saying. And if you go back and you look at the history of how innovation occurs in creativity, it is an incremental process of people building on other people's innovations. Disney, which is probably the most aggressive of all the studios in terms of copyright protection, owes its major intellectual properties to the works of others.

And because of the falling of (such works) into the public domain, Disney was able to take it and essentially use it as the foundation for Mickey Mouse, Snow White and the Seven Dwarves.... Mickey Mouse was an iteration of somebody named Steamboat Willie that came before. (Disney) didn't create it. Somebody else did.

I think Larry Lessig has performed a very useful function of pointing out how creativity will continue to advance our community and it depends on building on the success of others, and you can't do that if people lock up this property.

WN: How do you rank the current administration in terms of handling broadband policy? There is a lot of criticism about where we are right now.

Boucher: Well-justified criticism. We rank 13th in the world in terms of percent of the population that uses broadband. This is the country that invented the internet. We still create most of the popular internet applications in the U.S. And to be 13th in terms of broadband deployment is not a noble status.

And I fault this administration for not having been more aggressive in finding ways to stimulate broadband deployment more deeply into the population.... Most other countries in the developed world have made it a national priority to deploy broadband and they are putting public resources behind the effort. I think we should.

WN: How will you accomplish this?

Boucher: Two things in particular. One of those is to redefine universal service so as to make broadband an eligible subject for universal service support. Where at the moment it just makes telephone service affordable and that's something that it needs to continue to do ... we should add broadband deployment (to that mission).

(Secondly), I think the time has come for us to set national rules that will clearly get local governments to get involved in providing broadband services.... In some communities in my district, the populations are so small that we don't even have cable systems. And telephone companies haven't seen it as economically advantageous to offer DSL and so there is no broadband at all.

And I think where that happens, the local government has a legitimate role to play in providing the services, exactly analogous to what happened 100 years ago with municipal electric utilities. Where the investor-owned utilities didn't want to provide the service, the local government stepped in, and today, 100 years later, we still have municipal electric utilities. And this is a service every bit as essential in this century as electricity was in the early days.

WN: In the last session of Congress, the technology industry really came together and successfully blocked the Induce Act legislation, which would have held tech companies responsible for creating devices that could be used to pirate digital content. How unusual is that? Is the tech industry finally building more of a presence in Washington? Typically, the entertainment industry has been considered much more savvy and connected.

Boucher: Until about 2000, many of the technology companies had a real hands-off approach toward lawmaking. I think they perhaps somewhat naively thought that at the end of the day, Congress or the president would do what was right. And they either had total faith in the system or they had no faith in it.

I think some probably had one view and some the other. But whichever view they had they weren't dealing with us. They just were not in Washington defending their interests. And then they got mashed with the Digital Millennium Copyright Act. The tech industry was not involved in that.

I was making the same arguments in 1998 that I'm making today, which is that we shouldn't eliminate fair use for digital media, and we shouldn't say that developing technology that has substantial legitimate uses is wrong just because somebody can misuse it. You know, you don't punish a hammer manufacturer because somebody uses a hammer to break into a house....

Make no mistake about it, this is a war between content and technology, and you don't win a war over the long term just playing defense. And so it's time to go on offense and the way to go on offense is to enact HR 1201 (the Digital Media Consumers' Rights Act, HR 1201) and that's why you see such a large collection of technology companies supporting this bill.

WN: What's your perspective on the broadcast flag? (The broadcast flag, now moribund, would have protected content from "unauthorized" redistribution, and may yet be resurrected in a different form).

Boucher: The circuit court for D.C. has invalidated broadcast flag rulemaking, saying that the FCC lacked statutory authority (to create the broadcast flag). Not surprisingly, the MPAA has now come to us and said, "We want you to legislate."

I don't think we are going to do that. I have been waiting for a long time for Hollywood to come to us and say, "Here's something we want" because there is something I want. And it's called the Digital Media Consumers' Rights Act.

It would do two things. It would codify the Betamax decision of the Supreme Court that says that if you manufacture technology that is capable of substantial non-infringing use -- then if it is put to an infringement purpose somewhere down the road -- then the manufacturer has no responsibility for the copyright infringement....

The other thing that it does is say that if you circumvent a technical protection measure in order to perform a legitimate act such as exercising a fair-use right, you are not guilty of a crime.

Now, I have great support for this measure from the technology industry, which has proudly endorsed it. The public-use community, universities, consumer organizations, EFF (Electronic Frontier Foundation) and others have endorsed it.

But the motion picture industry strongly opposes it. So here is an opportunity to have a conversation with them and say, "All right, we understand the importance of the broadcast flag," and you know my normal position is to oppose any kind of technology mandate.

This one is a little bit different in that the only way that I think we are going to have high-value television programming delivered over the air in digital format is if the motion picture industry has some level of confidence that it's not going to get recorded and uploaded to the internet.

We need to make sure if we are going to do the broadcast flag that fair-use rights are preserved. So, for example, people when they record a television program off the internet should be able to move it around inside the home environment from digital device to digital device.