Reforming the '98 Copyright Act

The year 1982 will always be remembered in the history of the consumer electronics business as the year the U.S. Supreme Court ruled that Sony's Betamax was legal, which put billions and billions of dollars in the bank accounts of the movie business.

Maybe 2003 will turn out to be the year consumers' fair use recording rights in the digital age were upheld by new legislation being pushed through Congress, the Digital Media Consumers' Rights Act. While consumers and the consumer electronics industry would like to think so, getting from where we are now to the industry's stated goal will still take plenty of work. Take a look at what has happened so far this month.

On the ides of January, the Supreme Court upheld the 20 year extension on copyrights Congress granted in the Digital Millennium Copyright Act of 1998. Even though the Justices held their collective noses and all but said that the legislation was lousy public policy, they upheld the law by a vote of 7 to 2. Why? Justice Ruth Bader Ginsberg said in her majority decision that the legislation "reflects the judgments of a kind Congress typically makes." (See TWICE, Jan. 20, p. 6.)

Based on that type of reasoning, instead of urging caution, mothers worldwide over the centuries should have been saying to their children, "Well if all your friends want to jump off a cliff, it's okay with me."

Still, by making its decision in January, the Court may have done consumers and the consumer electronics industry a favor. This decision clears the deck for the real battleground, Capitol Hill. Congressmen Rich Boucher (D-VA) and John Dolittle (R-CA) have pledged to fight for the passage of the Digital Media Consumer Rights Act of 2003, which they are sponsoring. The Congressmen said at CES that their legislation would confirm the Supreme Court's Betamax decision, reform the 1998 legislation and impose stringent labeling requirements on anti-copy CDs.

Boucher said that the 1998 legislation "wasn't thinking of the end-user. I don't think it's right to punish people for moving their CD audio to an iPod, but I do not approve of unlawful distribution."

While the Consumer Electronics Association has never approved of unlawful distribution, CEA president/CEO Gary Shapiro said, "I think it's time that we took the initiative instead of always being on the defensive." While I'm not an expert in the wilds of D.C. politics, take a look at which side has voted with contributions to which party over the years. The entertainment industry has historically backed the Democratic party heavily over the years. With Republicans in control of the Congress and the White House, I think you could assume that this is the best chance the industry is going to get to overturn objectionable parts of the 1998 legislation.

One other trend should help the industry's position on Capitol Hill: greater knowledge of CE products now vs. in 1998. As Representative Joe Barton (R-Texas) said in a CES roundtable, many members of Congress "have learned a lot" about CE products since 1998 and might now reconsider parts of the legislation due to the fast pace of change concerning digital technology.

This whole question of fair use recording rights during the digital era may change for the better this year, as quickly as the technology changes, which is sometimes at the speed of light. Stay tuned on this issue because the changes could be fast, furious and positive for consumers and the industry.