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Is ‘Fair Use’ in Peril?

The far-reaching Intellectual Property Protection Act would deny consumers many of the freedoms they take for granted.
November 19, 2004

Do you like fast-forwarding through commercials on a television program youve recorded? How much do you like it? Enough to go to jail if youre caught doing it? If a new copyright and intellectual property omnibus bill sitting on Congresss desk passes, that may be the choice you’ll face.

How can this be possible? Because language that makes fast-forwarding through commercials illegalno doubt inserted at the behest of lobbyists for the advertising industrywas 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 thats 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 theyve been engaged in for more than a quarter century?

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.

Heres more of whats 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, Apples 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 doesnt differentiate this innocuousand Apple sanctionedact 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. Its 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 industrys 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 hyperboleusually 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 havent met an affront that didnt 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 Hatcha very Hollywood-friendly polon 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.

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