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Eric Hellweg, "Is 'Fair Use' in Peril?"

"Is 'Fair Use' in Peril?"

Eric Hellweg, technologyreview.com

The far-reaching Intellectual Property Protection Act would
deny consumers many of the freedoms they take for granted.

Do you like fast-forwarding through commercials on a
television program you've recorded? How much do you like it?
Enough to go to jail if you're caught doing it? If a new
copyright and intellectual property omnibus bill sitting on
Congress's desk passes, that may be the choice you'll face.How can this be possible? Because language that makes fast-
forwarding through commercials illegal-no doubt inserted at
the behest of lobbyists for the advertising industry-was
inserted into a bill that would allow people to fast forward
past objectionable sections of a recorded movie (and I bet you
already thought that was OK). And that's but one, albeit
scary, scenario that may come to pass if the Intellectual
Property Protection Act is enacted into law. Deliberations on
this legislation will be one of the tasks for the lame-duck
Congress that commenced this week.

In a statement last month, Senator John McCain stated his
opposition to this bill, and specifically cited the anti-
commercial skipping feature: 'Americans have been recording TV
shows and fast-forwarding through commercials for 30 years,'
he said. 'Do we really expect to throw people in jail in 2004
for behavior they've been engaged in for more than a quarter

Included in the legislation are eight separate bills, five of
which have already passed one branch of Congress, one of which
was approved by the Senate Judiciary Committee, and two of
which have merely been proposed. By lumping all the bills
together and pushing the package through both houses of
Congress, proponents hope to score an enormous victory for
Hollywood and some content industries.

Here's more of what's included: a provision that would make it
a felony to record a movie in a theater for future
distribution on a peer-to-peer network. IPPA would also
criminalize the currently legal act of using the sharing
capacity of iTunes, Apple's popular music software program;
the legislation equates that act with the indiscriminate file
sharing on popular peer-to-peer programs. Currently, with
iTunes, users can opt to share a playlist with others on their
network. IPPA doesn't differentiate this innocuous-and Apple
sanctioned-act from the promiscuous sharing that happens when
someone makes a music collection available to five million
strangers on Kazaa or Grokster.

Not surprisingly, the bill has become a focal point for very
vocal parties. In favor of the legislation are groups such as
the Recording Industry Association of America, the Motion
Picture Association of America, and various songwriter, actor,
and director organizations. 'We certainly support it,' says
Jonathan Lamy, spokesperson for the RIAA. 'It includes a
number of things to strengthen the hand of law enforcement to
combat piracy. Intellectual property theft is a national
security crime. It's appropriate that the fed dedicate
resources to deter and prosecute IP theft.'

Against the bill stand a number of technology lobbying groups
and public-interest organizations. '[IPPA] is a cobbled-together package to which Congress has given inadequate
attention. It is another step in Hollywood and the recording
industry's campaign to exert more control over content,' says
Gigi Sohn, president of Public Knowledge, a Washington, DC-
based public interest group that aims to alert the public to
fair use and consumer rights infringements, and fight those
perceived infringements in Washington.

Anyone attuned to the machinations of Congress the last two
years likely has become numb to the often overblown rhetoric
on this issue. Both sides use hyperbole-usually in the form of
calling a piece of legislation the death of an industry or the
death of individual rights. The 1982 statement to a
congressional committee by Jack Valenti, then head of the
MPAA, that the VCR is to Hollywood what the Boston Strangler
was to a woman alone still stands as the ne plus ultra of
exaggerated claims. And civil libertarians haven't met an
affront that didn't equal a stake through the heart of
individual rights. But IPPA demands attention not just from
Hill watchers, but from regular individuals. In part because
IPPA is such a broad, encompassing bill that could affect
things as pedestrian as fast-forwarding a commercial, but also
because with Senator Orrin Hatch-a very Hollywood-friendly
pol-on his way out as the chair of the Senate Judiciary
Committee, to be replaced possibly by Arlen Specter, many in
the Hollywood community see this as an important, last chance
to get their demands made into law.

[Eric Hellweg is a technology writer based in Cambridge, MA. Copyright 2004 Technology Review, Inc. All rights reserved.

[For additional information about this legislation, see issues.]