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Alarms raised by the recording companies and the motion picture industry about illegal piracy using file-sharing technologies (like KaZaA and Grokster) have led to highly charged debates and demands for new laws to protect copyrights.  The balance between consumers and copyright owners in the digital world is at stake.

It is critical that consumers be heard in this debate to ensure that the balance between consumer rights and copyright owners is preserved.  Public Knowledge has a comprehensive list of which intellectual property and digital content-related issues are before Congress.  But these are some of the key issues that might be in play when the 109th Congress convenes.

INDUCE – When People Pirate Music and Movies, is Technology to Blame?

The Inducing Infringement of Copyrights Act of 2004 (nicknamed INDUCE), aimed to punish those who induce others to infringe copyrights.  Although aimed at peer-to-peer file sharing software like Grokster or KaZaA, as introduced, it could harm technological innovation — or at least prevent Americans from having access to it. 

The bill would have punished manufacturers of technology that can be used for infringing purposes — even if the technology has legitimate uses too — by opening the manufacturers to litigation.  This would have prevented many new technologies from ever reaching the market, which would gut consumers' legal use of these new technologies.

The Electronic Frontier Foundation wrote a brief in a mock case illustrating how a copyright holder might move against Apple for creating the iPod, a device that could induce infringement, but has many popular legal uses. They were trying to demonstrate the problems that the INDUCE Act could have by targeting technology that might be used illegally.

The bill died after a Senate Judiciary Committee hearing detailed the lack of agreement between technology companies, copyright owners and engineers. The legal standard the INDUCE act would have enacted, however, were largely implemented in 2005 by the Supreme Court in the landmark Grokster decision.  That case was brought against file-sharing software companies — but it will have affects on any company that makes technology that deals with copyrighted material like TV shows, music and movies.

Fair Use and the Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA), enacted in 1998, sought to give copyright owners extra tools to protect their works in the digital age.  Read the UCLA Online Institute for Cyberspace Law and Policy for more information about what the law included.

One of the DMCA's most important provisions blocks consumers, libraries and academics from circumventing copy protections even if the purpose is for a personal, educational or non-commercial fair use.  For example, if a consumer purchased copy-protected CDs, they could be blocked from burning a mixed CD of their favorite songs for their car.  So even though the purpose might be legal, it would be illegal for consumers to go around the copy-protection. The Free Expression Policy Project at the Brennan Center for Justice at NYU School of Law published a report that explains the problems of anti-circumvention language within the DMCA, "The Progress of Science & Useful Arts: Why Copyright Today Threatens Intellectual Freedom."

Current legislative proposals have been introduces in this area. Consumers Union endorsed one measure aimed at fixing the problem libraries, consumers, technology companies and others have the DMCA.  This measure, called the Digital Media Consumers' Rights Act (DMCRA), is a way to protect the balance between copyright and fair use -- and make consumers informed about the digital media they buy.  The bill would have fair uses of copyrighted works regardless of the anti-circumvention language of the DMCA. Another provision would mandate labels for copy-protected CDs to inform consumers that such CDs will not work in all CD players.  

Consumers Union's former Legislative Counsel Chris Murray, Public Knowledge's Gigi Sohn, American Library Association's Miriam Nisbet and Stanford Law School Professor Larry Lessig all testified before a House Energy and Commerce Committee hearing.  All offered examples of how "anti-circumvention" provisions block legitimate non-commercial, educational and personal uses.

DATABASE – Can Someone Own a Fact?

According to Public Knowledge, the Database and Collections of Information Misappropriation Act, introduced in the House of Representatives could make it a crime for anyone to copy and redistribute a substantial portion of data collected by commercial database companies and list publishers. 

An Internet search engine, for example, might be in violation for scouring online databases containing weather temperatures and sports scores (essentially facts) and providing that factual information on its Web site.  Copyright law is a delicate balance between the rights of creators and the rights of those who seek to use their creations, but copyright law is clear that it is not facts that may be protected—only their unique arrangement.  The protection of facts is harmful to a democratic society.

Consumers Union sent a letter to the House of Representatives on a version of this legislation they considered in early 2004 that explained their opposition to it. These database bills died in Congress and are not likely to be re-introduced.