Five years after it was enacted, the Digital Millennium Copyright Act is living up to critics' worst fears. The antipiracy law has become a broad legal cudgel that's wielded against legitimate reapplications of intellectual property, from mix CDs to off-brand toner cartridges. Representative Rick Boucher (D-Virginia) has written the Digital Media Consumer Rights Act (HR 107), which would make it legal to, among other things, create an archival copy of a CD or DVD. Good fix for a bad law - but why not just blow up the DMCA instead?
WIRED: Are you trying to defang the DMCA by reasserting fair-use rights?
BOUCHER: I'm reluctant to make a really broad statement, because no sooner would I say that than I would have those words quoted back to me by [Motion Picture Association of America president] Jack Valenti. HR 107 does not defang the DMCA with respect to people who are trying to commit piracy. It does, however, defang the DMCA with respect to the innocent, with respect to the purchase of digital media for legitimate purposes.
WIRED: Where was the DMCA opposition on Capitol Hill in 1998, when it would have counted?
BOUCHER: I was paying a lot of attention then, and in fact I offered the same amendment. Not very many members of Congress were willing to listen to those concerns at the time. Now a much larger external community is determined to make changes - most notably technology companies, which were not a part of the debate in 1998.
WIRED: What's brought Silicon Valley into the picture?
BOUCHER: The realization that the market for technology products and services will be adversely affected as the DMCA bites deeper and inhibits the rights of digital media purchasers. I might add that the entertainment companies will also get hurt: When consumers start finding they can't use the media fully, they will value it less.
WIRED: You've called the DMCA a testament to Hollywood's lobbying power. How can you win?
BOUCHER: Consumer outrage will grow as copy-protected CDs make their way into the market in greater numbers. The public response is going to be visceral, and it will be heard by members of Congress.
WIRED: Digital piracy has been illegal since the 1976 Copyright Act. Why not just scrap the DMCA?
BOUCHER: As a practical matter, it's probably easier for us to make these surgical changes than to simply attempt to repeal the act. And, after all, we're looking for a victory. We're not looking just to make a statement.
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