SECTION BY SECTION ANALYSIS OF “THE DIGITAL CHOICE AND FREEDOM ACT OF 2002”

 SECTION 1: 

Designates the title as “The Digital Choice and Freedom Act of 2002.”

 SECTION 2:

             Lists factual findings.

 SECTION 3: 

(a) Section (a) clarifies that America’s historic principles of fair use – codified in section 107 of Title 17 – apply to analog and digital transmissions. 

(b) The digital age has dramatically increased the power of copyright holders to control the way consumers use digital content.  For example, in the digital age, publishers don’t just set the price of books.  They can control where consumers read digital books, and for how long.  They can even prevent a consumer from sharing their copy with a friend or family member.  

This control over consumer uses has dramatically altered the traditional balance of copyright law.  On the one hand, copyright seeks to encourage and reward an author’s creative efforts.  But as the Supreme Court stated in Twentieth Century Music Corp. v. Aiken, “[p]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts….”

 Section (b) seeks to restore the balance by adding section 123 to Title 17.  Section 123 allows lawful consumers to make backup copies of digital works, and to use digital works on preferred digital media devices.  It further protects consumers by prohibiting non-negotiable “click-wrap” licenses that limit their rights and expectations. 

 Consumers have shown that they want to use content on new and exciting platforms, like MP3 players.  They should not have to ask copyright holders for permission to do so.

             Ultimately, this proposal will not only benefit consumers.  A legitimate alternative that respects consumer rights and expectations is the only lasting cure for digital piracy.  And providing room for technological innovation will lead to economic recovery and jobs in the Valley.       

SECTION 4:

             Today, when a consumer purchases a book, they are free to lend their copy to a friend or family member, or to sell their copy to a used books store.  Section 4 allows consumers to do the same thing with digital content by extending the first sale doctrine – codified in section 109 of Title 17 – to digital transmissions.  At the same time, it protects copyright holders by restricting such transmissions to a single recipient and requiring the consumer to transmit their copies with copy-control restrictions in place.  Consumers also have to dispose of their copy after they transmit the work to someone else.  After all, if you sell your hard copy of a book, you no longer possess the book. 

 SECTION 5:

 

            Contrary to the intent of Congress, Section 1201 of the DMCA has been used to prohibit all users – even lawful ones – from circumventing technical restrictions for any reason.  As a result, lawful consumers cannot legally circumvent technological restrictions, even if they are simply trying to exercise a fair use or to utilize a work on a different digital media device. 

 The authors of the DMCA never intended to create such a dramatic shift in the balance.  As the House Judiciary Report accompanying the DMCA stated:  “[A]n individual [should] not be able to circumvent in order to gain unauthorized access to a work, but should be able to do so in order to make fair use of a work which he or she has acquired lawfully.” 

Section 5 reaffirms this intent, while also providing needed flexibility for the copyright owner.  Under section 5, a copyright owner is free to employ technical measures to protect his or her work.  However, the copyright owner must ensure that those measures allow lawful consumers to make non-infringing uses of the work. 

 There is no single fix prescribed.  For instance, the copyright owner can provide a special password to lawful consumers, or can develop new and innovative ways to enable non-infringing uses.  Only if a copyright owner fails to make a solution publicly available, can a lawful consumer circumvent technological protections.   

 Analysis prepared by Congresswoman Lofgren and staff.

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