Entitled to Entertainment? The Digital Media Consumers’ Rights Act

January 13, 2003 • TechKnowledge No. 47

Do consumers really have “rights” when it comes to getting copies of someone else’s songs or movies? That’s the implication of Rep. Rick Boucher’s (D‐​Va.) H.R. 107, “Digital Media Consumers’ Rights Act,” which was recently reintroduced in the 108th Congress. The bill is a mixed bag of thoughtful ideas and unfortunate missteps. The bill takes a cue from DigitalConsumer.org’s “Consumer Bill of Rights” which emphasizes media portability. Presumably, if you buy a CD, you ought to be able to copy the songs or transfer them to another listening device as you please. Fair enough; but “bills of rights” are meant to protect citizens from governments, not consumers from a record company or artist who prefers not to hand over all say‐​so about the use of their music. Are bills of rights or entitlements really the right approach when it comes to what, for the most part, amounts to entertainment? One doesn’t have the “right,” for example, to demand similar things with regard to scrambled pay‐​per‐​view programming on a cable system, or password‐​protected computer software and websites.

Music or movie companies have legitimate reasons for wanting to utilize various schemes to protect their works from unlimited future reproduction and redistribution. In an age of widespread peer‐​to‐​peer file swapping on the Internet, complex encryption methods and other forms of digital rights management (DRM) are being tested by the content community as a way of retaining some control over their works and profiting from them. Representative Boucher and supporters of his bill take aim at such CD or DVD copy‐​protection practices and propose a national mandatory‐​labeling regime, complete with new monitoring powers for the Federal Trade Commission, that would require companies to give notice of when a disk is copy protected and what minimum software requirements may apply for successful playback.

But markets do a good job conveying such information already. Copy‐​protected CDs are typically labeled as such. And if companies fail to label, and that turns consumers away, the companies themselves will pay the price in lost sales and consumer outrage. It’s worth remembering too that when CDs were introduced, they were meant to be played on a CD player, not a computer. That has not changed from the standpoint of the seller. It is thus not a “deceptive trade practice” to not label such a disk if it is not playable on “all devices capable of playing an audio compact disk,” like a PC.

Regardless, in the future, consumers should assume that many of the CDs they buy will be copy‐ protected and won’t necessarily be readily reproduced. In fact, one of the key mistakes music companies made was to shower the planet with unprotected music and movies, rendering every single disk the equivalent of a master copy. Their effort to correct that, whether ultimately successful or 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 not necessarily a “right” that government needs to recognize. Even traditional “fair use” rights don’t necessarily grant a perfect digital copy at one’s whim.

Whether copy protection will work is a different question than whether producers have a right to try new mixes of copy protection and pricing. Opponents of DRM often refer to their freedom of speech and regard such copy protection technologies as threats to free expression. But content creators also have the freedom to speak, and that implies a corresponding freedom not to speak; or, put another way, the freedom to limit the conditions under which their own message is heard, to the best of their abilities. The extent to which government stands in the way of private efforts to protect content via copy protection controls or licensing schemes is a violation of creator’s rights, not a violation of free speech for someone who intends to make a duplicate. Government ought not interfere with such experimentation by discouraging copy‐ protection schemes (or by mandating them, as Hollywood and the record companies would prefer).

It also pays to consider the potential unintended consequences of the Boucher bill. If the FTC were empowered to “establish appropriate labeling requirements” for new CDs, that might end up hurting small record producers‐​the very ones many look to for innovation and better treatment of artists‐​to the advantage of the existing big companies that can afford to jump through the administrative hoops. Industries constrained by regulations are dominated by those who play the game, not entrepreneurs.

On the flip side, the Digital Media Consumers’ Rights Act does seek to clarify the ability to decrypt copy protection technologies if the effect is not to undermine commercial opportunities. Notably, that provision does not interfere with efforts to develop and use copy protection in the first place, as some fair‐ use advocates would otherwise do, nor does it amount to a wholesale guarantee of a right to make perfect copies, to which vendors must acquiesce. Such clarification is a worthwhile and realistic goal; Congress is more likely to tweak than repeal the Digital Millennium Copyright Act of 1998, which appears to outlaw even non‐​infringing breaches of anti‐​circumvention technologies, such as academic research.

Along with that clarification, more fruitful legislative efforts might include cutting back the duration of copyright terms, after which 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 the author. Boucher could also stipulate that anti‐​circumvention prohibitions shall not apply once the protection period for a work has expired. (Under today’s DMCA expiration is no defense, and copy protection could lock up a work “forever.”)

But the CD labeling scheme envisioned by the Boucher bill is another misguided chapter in Congress’ ongoing efforts to solve IP problems through convoluted federal technology mandates. In recent years, Congress has increasingly sought to preempt marketplace developments and impose ill‐​advised technological quick fixes in bills such as the Audio Home Recording Act of 1992, the No Electronic Theft Act of 1997, the DMCA of 1998, and the Satellite Home Viewer Improvement Act of 1999. To his credit, Boucher opposed many of those efforts and would likely do away with many of them if he had his way. But his latest bill risks adding another layer to the incomprehensible legislative morass of the federal Copyright Act, which now stands at over 230 pages (compared to just 12 at the turn of the century). As copyright guru Jessica Litman argues in her book Digital Copyright, “our current copyright statute could not be taught in elementary school, because elementary school students couldn’t understand it. Indeed, their teachers couldn’t understand it. Copyright lawyers don’t understand it.”

What Boucher would start with mandatory labeling, others might propose to expand to outlaw the exploration and development of entire categories of copy protection, since that might violate a Digital Media Bill of Rights. But if consumers have such a “right” to digital content, that precludes the market’s developing techniques that both protects content in some fashion and gives people what they want.

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