The Goodlatte, the bad and the ugly…

My Washington Office colleague Carrie Russell, ALA’s copyright ace in the Office of Information Technology Policy, provides a great rundown here on the District Dispatch on the substantive ins and outs of the House IP Subcommittee’s hearing yesterday. The Subcommittee met to take testimony on the part of the 1998 Digital Millennium Copyright Act (Section 1201, for those of you keeping score at home) that prohibits anyone from “circumventing” any kind of “digital locks” (aka, “technological protection measures,” or “TPMs”) used by their owners to protect copyrighted works. The hearing was also interesting, however, for the politics of the emerging 1201 debate on clear display.

First, the good news.  Rep. Bob Goodlatte (VA), Chairman of the full House Judiciary Committee, made time in a no doubt very crowded day to attend the hearing specifically for the purpose of making a statement in which he acknowledged that targeted reform of Section 1201 was needed and appropriate.  As one of the original authors of 1201 and the DMCA, and the guy with the big gavel, Mr. Goodlatte’s frank and informed talk was great to hear.

Likewise, Congressman Darrell Issa of California (who’s poised to assume the Chairmanship of the IP Subcommittee in the next Congress and eventually to succeed Mr. Goodlatte at the full Committee’s helm) agreed that Section 1201 might well need modification to prevent it from impeding technological innovation — a cause he’s championed over his years in Congress as a technology patent-holder himself.

Lastly, Rep. Blake Farenthold added his voice to the reform chorus.  While a relatively junior Member of Congress, Rep. Farenthold clearly “gets” the need to assure that 1201 doesn’t preclude fair use or valuable research that requires digital locks to be broken precisely to see if they create vulnerabilities in computer apps and networks that can be exploited by real “bad guys,” like malware- and virus-pushing lawbreakers.

Of course, any number of other members of the Subcommittee were singing loudly in the key of “M” for yet more copyright protection.  Led by the most senior Democrat on the full Judiciary Committee, Rep. John Conyers (MI), multiple members appeared (as Carrie described yesterday) to believe that “strengthening” Section 1201 in unspecified ways would somehow thwart … wait for it … piracy, as if another statute and another penalty would do anything to affect the behavior of industrial-scale copyright infringers in China who don’t think twice now about breaking existing US law.  Sigh….

No legislation is yet pending to change Section 1201 or other parts of the DMCA, but ALA and its many coalition partners in the public and private sectors will be in the vanguard of the fight to reform this outdated and ill-advised part of the law (including the triennial process by which exceptions to Section 1201 are granted, or not) next year.  See you there!

About Adam Eisgrau

Adam Eisgrau is a 30-year veteran of Washington legal practice, government service, public and private sector lobbying, and strategic communications and policy consulting. Adam first handled digital copyright matters for ALA from 1995 to 1999 and rejoined the Washington Office in September 2014 as managing director of the Office of Government Relations. His issue portfolio includes copyright, privacy and surveillance, cybersecurity, encryption and data security. Adam received a BA in American Studies from Dartmouth College and his JD from Harvard Law.

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