The Digital Millennium Copyright Act (DMCA), which President Clinton signed into law in October 1998, amended existing U.S. copyright laws to protect copyright owners from online 'piracy' and to shield Internet service providers from certain liabilities, as an incentive for them to embrace the World Wide Web.

The DMCA sought to modernize existing copyright law for the digital age, making it illegal to circumvent copyright protection technology in order to illegally reproduce CDs, DVDs or any type of electronic media. The DMCA also makes it illegal to sell or distribute any product that is "primarily designed or produced for the purpose of circumventing a technological measure," meaning any product that enables large-scale unauthorized copying and sharing of copyrighted materials.

The law criminalizes digital copyright infringement; anyone who violates the DMCA "willfully and for purposes of commercial advantage or private financial gain" can be fined up to $500,000 and imprisoned for up to five years for a first offense. Some exceptions apply to librarians, police and researchers conducting reverse engineering and encryption studies.

The DMCA recognizes consumers' "fair use rights," which allow limited reproduction of copyrighted works for specific purposes, as long as the consumer does not infringe copyrights (by distributing unauthorized digital copies to friends, for example). Such fair-use rights include making back-up copies or using the product for published criticism, news reporting, teaching or research.

Particularly controversial is section 512 of the DMCA, which allows a copyright owner to order an Internet service provider to hand over information about a subscriber without requiring judicial approval or notification of the alleged copyright violator.

The DMCA also implemented the 1996 World Intellectual Property Organization (WIPO) Copyright and Performance and Phonograms Treaties, both of which seek to protect copyright owners from member countries. The WIPO operates as one of the United Nations' specialized agencies and works with the World Trade Organization.

The No Electronic Theft law (The NET Act), which President Clinton signed into law in December 1997, essentially closed a loophole in existing copyright laws by criminalizing infringements committed electronically or over the Internet. The NET Act punishes those who knowingly copy, distribute or traffic protected materials over the Internet, regardless of whether they gain from it financially or commercially.

Penalties include up to five years in prison and/or $250,000 fines. The NET Act also extended the criminal statute of limitations for copyright infringement from three to five years.

Additionally, the NET Act expanded the definition of "commercial advantage or private financial gain" to include the receipt, or expectation of receipt, of anything of value, like copyrighted works, as in MP3 trading. Individuals can be civilly liable, for actual damages or lost profits, or for statutory damages up to $150,000 per work infringed, regardless of whether the infringement activity was for profit.

The software and entertainment industries (including the Business Software Alliance and the Recording Industry Association of America) strongly backed the act, while science and academic groups, librarians and cyber-rights advocates opposed it.

PROPOSED LEGISLATION:
Congress is considering a number of measures to secure digital copyrights and to strike a balance between the rights of consumers and those of entertainment companies and other copyright holders.

One of the more contentious proposals is the Consumer Broadband and Digital Television Promotion Act (CBDT), authored by Senator Fritz Hollings (D-S.C.), ranking member of the Senate Commerce Committee. The bill (S. 2048) would mandate technological protection of digital content as a way of facilitating the transition to broadband and digital television.

The bill says all "digital media devices" sold in the U.S. must include copy-protection mechanisms, to be defined by the Federal Communications Commission. The measure would criminalize the sale of any digital hardware that does not come equipped with FCC-approved copy-protection controls, making CD burners, DVD recorders, MP3 players and Palm Pilots illegal unless manufacturers render the devices incapable of making unauthorized duplicates.

Critics, such as the Electronic Frontier Foundation (EFF), say Hollings' bill would reduce the consumers' rights to fair use by making it nearly impossible to copy digital media, record a TV show, or transfer a movie on a VHS tape to a digital format.

Another bill (H.R. 5211), sponsored by Representative Howard Berman (D-Calif.), would allow entertainment companies and associations, like the RIAA and MPAA, to disable, block or halt the unauthorized copying and distribution of copyrighted content over a "publicly accessible peer-to-peer file-trading network," like Morpheus or Kazaa.

Known as the Peer-to-Peer Piracy Prevention bill, Berman says his measure would empower copyright owners to create and "use technological tools to thwart P2P piracy without fear of liability."

"The bill my colleagues and I introduce today will free the marketplace to develop technologies that thwart P2P piracy without impairing P2P networks themselves," Berman, a representative from Los Angeles, said in a statement last July. "It will do so by allowing copyright owners, in certain limited circumstances, to use technological tools to thwart P2P piracy without fear of liability."

Berman sits on the House Judiciary Committee and is the ranking Democrat on the Subcommittee on Courts, the Internet and Intellectual Property.

The digital rights group EFF calls Berman's bill "vigilantism unbound" and points out that Berman's top donors included the political action committee of major entertainment companies including Walt Disney, AOL Time Warner and Vivendi, according to the Center for Responsive Politics. Not all Berman's colleagues support his P2P Piracy bill, however.

On January 7, 2003, Representative Rick Boucher (D-V.A.) who also serves on the House Judiciary Committee's subcommittee on the Courts, the Internet and Intellectual Property introduced an alternative to the P2P Piracy bill with the Digital Media Consumers' Rights Act (DMCRA).

The bill, Boucher says, intends to make "the necessary changes to the DMCA to restore the historic balance in U.S. copyright law" by strengthening consumers' fair use rights of copyrighted material, including digital media.

This proposal would lift the DMCA's prohibition on bypassing copy-protection technologies so consumers could, for instance, transfer content to new media equipment, such as MP3 players, as long as it does not result in copyright infringement. Along those lines, the bill would amend provisions of the 1998 law that prohibit the manufacturing, distribution or sale of technology enabling circumvention of copy protection measures.

Boucher recommends changing the DMCA to permit scientists, researchers and academics to crack copy protection mechanisms for scientific research and technological progress.

Boucher's bill would also mandate the labeling of compact discs containing embedded copy-protected technology to make consumers aware before purchasing that these CDs could not be copied or played on certain equipment.

A number of Boucher's colleagues, like Representatives John Doolittle (R-Calif.), Spencer Bachus (R-Ala.) and Patrick Kennedy (D-R.I.), support the DMCRA, as do a variety of businesses and non-profit groups. These include Intel, Verizon, Philips, the Consumers Union, the EFF and the American Library Association.

In March 2003, Representative Zoe Lofgren (D-Calif.) won support from groups such as the EFF and Lawrence Lessig's Creative Coalition, for her Balance (an acronym for Benefit Authors without Limiting Advancement or Net Consumer Expectations) Act.

Lofgren's measure seeks to reestablish consumers' rights to digitally copy music, movies and books for personal use. Among other provisions, the bill would preserve the consumers' right to make back-up copies of digital works to play on other media equipment, like a home stereo or portable player, and to protect consumers who bypass technological locks to watch a DVD movie on their laptops, for instance.

-- By Liz Harper, Online NewsHour