Entitled to Entertainment? The Digital Media Consumers’ Rights Act


Do consumers really have "rights" when it comes to gettingcopies of someone else's songs or movies? That's the implication ofRep. Rick Boucher's (D-Va.) H.R. 107, "Digital Media Consumers' Rights Act," which wasrecently reintroduced in the 108th Congress. The bill is a mixedbag of thoughtful ideas and unfortunate missteps. The bill takes acue from DigitalConsumer.org's "Consumer Bill of Rights" whichemphasizes media portability. Presumably, if you buy a CD, youought to be able to copy the songs or transfer them to anotherlistening device as you please. Fair enough; but "bills of rights"are meant to protect citizens from governments, not consumers froma record company or artist who prefers not to hand over all say-soabout the use of their music. Are bills of rights or entitlementsreally the right approach when it comes to what, for the most part,amounts to entertainment? One doesn't have the "right," forexample, to demand similar things with regard to scrambledpay-per-view programming on a cable system, or password-protectedcomputer software and websites.

Music or movie companies have legitimate reasons for wanting toutilize various schemes to protect their works from unlimitedfuture reproduction and redistribution. In an age of widespreadpeer-to-peer file swapping on the Internet, complex encryptionmethods and other forms of digital rights management (DRM) arebeing tested by the content community as a way of retaining somecontrol over their works and profiting from them. RepresentativeBoucher and supporters of his bill take aim at such CD or DVDcopy-protection practices and propose a national mandatory-labelingregime, complete with new monitoring powers for the Federal TradeCommission, that would require companies to give notice of when adisk is copy protected and what minimum software requirements mayapply for successful playback.

But markets do a good job conveying such information already.Copy-protected CDs are typically labeled as such. And if companiesfail to label, and that turns consumers away, the companiesthemselves will pay the price in lost sales and consumer outrage.It's worth remembering too that when CDs were introduced, they weremeant to be played on a CD player, not a computer. That has notchanged from the standpoint of the seller. It is thus not a"deceptive trade practice" to not label such a disk if it is notplayable on "all devices capable of playing an audio compact disk,"like a PC.

Regardless, in the future, consumers should assume that many ofthe CDs they buy will be copy- protected and won't necessarily bereadily reproduced. In fact, one of the key mistakes musiccompanies made was to shower the planet with unprotected music andmovies, rendering every single disk the equivalent of a mastercopy. Their effort to correct that, whether ultimately successfulor not, is not a violation of consumer rights, properly construed.No doubt, CDs do play on computers and will forevermore be "ripped"on them, regardless of copy protection attempts. But that's notnecessarily a "right" that government needs to recognize. Eventraditional "fair use" rights don't necessarily grant a perfectdigital copy at one's whim.

Whether copy protection will work is a different question thanwhether producers have a right to try new mixes of copy protectionand pricing. Opponents of DRM often refer to their freedom ofspeech and regard such copy protection technologies as threats tofree expression. But content creators also have the freedom tospeak, and that implies a corresponding freedom not to speak; or,put another way, the freedom to limit the conditions under whichtheir own message is heard, to the best of their abilities. Theextent to which government stands in the way of private efforts toprotect content via copy protection controls or licensing schemesis a violation of creator's rights, not a violation of free speechfor someone who intends to make a duplicate. Government ought notinterfere with such experimentation by discouraging copy-protection schemes (or by mandating them, as Hollywood and therecord companies would prefer).

It also pays to consider the potential unintended consequencesof the Boucher bill. If the FTC were empowered to "establishappropriate labeling requirements" for new CDs, that might end uphurting small record producers-the very ones many look to forinnovation and better treatment of artists-to the advantage of theexisting big companies that can afford to jump through theadministrative hoops. Industries constrained by regulations aredominated by those who play the game, not entrepreneurs.

On the flip side, the Digital Media Consumers' Rights Act doesseek to clarify the ability to decrypt copy protection technologiesif the effect is not to undermine commercial opportunities.Notably, that provision does not interfere with efforts to developand use copy protection in the first place, as some fair- useadvocates would otherwise do, nor does it amount to a wholesaleguarantee of a right to make perfect copies, to which vendors mustacquiesce. Such clarification is a worthwhile and realistic goal;Congress is more likely to tweak than repeal the Digital MillenniumCopyright Act of 1998, which appears to outlaw even non-infringingbreaches of anti-circumvention technologies, such as academicresearch.

Along with that clarification, more fruitful legislative effortsmight include cutting back the duration of copyright terms, afterwhich one would be totally free to copy to one's heart's content.Today's term is an overly generous 70 years beyond the life of theauthor. Boucher could also stipulate that anti-circumventionprohibitions shall not apply once the protection period for a workhas expired. (Under today's DMCA expiration is no defense, and copyprotection could lock up a work "forever.")

But the CD labeling scheme envisioned by the Boucher bill isanother misguided chapter in Congress' ongoing efforts to solve IPproblems through convoluted federal technology mandates. In recentyears, Congress has increasingly sought to preempt marketplacedevelopments and impose ill-advised technological quick fixes inbills such as the Audio Home Recording Act of 1992, the NoElectronic Theft Act of 1997, the DMCA of 1998, and the SatelliteHome Viewer Improvement Act of 1999. To his credit, Boucher opposedmany of those efforts and would likely do away with many of them ifhe had his way. But his latest bill risks adding another layer tothe incomprehensible legislative morass of the federal CopyrightAct, which now stands at over 230 pages (compared to just 12 at theturn of the century). As copyright guru Jessica Litman argues inher book Digital Copyright, "our current copyright statutecould not be taught in elementary school, because elementary schoolstudents couldn't understand it. Indeed, their teachers couldn'tunderstand it. Copyright lawyers don't understand it."

What Boucher would start with mandatory labeling, others mightpropose to expand to outlaw the exploration and development ofentire categories of copy protection, since that might violate aDigital Media Bill of Rights. But if consumers have such a "right"to digital content, that precludes the market's developingtechniques that both protects content in some fashion and givespeople what they want.