A key House subcommittee today approved legislation that would crack down on those camcording movies in theaters and impose stiffer punishments on those distributing pre-release works, reports Brooks Boliek in The Hollywood Reporter (Brooks always wants the "The" to be included in the name). While I think Congress should play a very limited role in regulation of technology, this bill is straightforward and strengthens state and federal laws against criminal activity. It also seeks to preserve old films and make it easier to get access to orphan works, such as movies that it's impossible to get distribution or use rights for because the copyright owner is unreachable. It's hard to object to this bill. Apparently the House Judiciary's Intellectual Property Subcommittee agreed, although the subcommittee's ranking Democrat Howard Berman (a strong defender of intellectual property) doesn't like a provision opposed by Hollywood that supports ClearPlay, a smut-skipping DVD technology (he voted yes anyway).

There have been some objections to the legislation. CEA and Public Knowledge both have taken issue with the camcorder provision, namely that it erodes fair use (one argument CEA has used is that if someone is testing a camcorder in a retail store and films a movie playing on a nearby TV set, they've broken the law). I think these arguments are a bit of a stretch, but I admire the purity of vision on fair use, just as they have a purity of vision in being willing to tolerate millions of file-sharers violating copyright law because the alternative might in some way impede on some technology. (We at IPcentral continue to maintain that there has to be a balance between protecting intellectual property and ensuring innovation of technology.) Surprisingly, I haven't seen Public Knowledge endorse the orphan works language, even though they have been very vocal on the subject and are gathering examples for a U.S. Copyright Review on that subject.

The bill, S-167 or the Family Entertainment and Copyright Act (FECA), passed the Senate on February 1st. (It's sponsored by Senator Orrin Hatch.) Lamar Smith, chair of the House IP Subcommittee, said he anticipates a full committee markup soon, and he and Berman want the legislation sent to the White House before the Grokster decision in June. The legislation cleared both bodies last year but got caught in some end-of-session controversies not directly related to the substance of the legislation itself.

Why the hurry to beat the expected June decision on Grokster? Smith and Berman maintain it will be tougher to pass any copyright legislation after that landmark ruling. It appears to be pretty tough now, given that some of the innocuous provisions in FECA have been kicking around in Congress for years, even as states act on their own.

Copyright law has served us for a long time, and I'm not eager to see Congress ripping it up and rewriting it every six months. But as we saw in the Induce Act debate, sides are hardening. I don't know much about Social Security and reform, but I do see that the Democrats are so resistant to giving President Bush a victory that they're opposing suggestions first made by Dems. I find that particularly frustrating because I used to work for Harry Reid, and he seemed a lot more flexible when he was a back-bencher.

I fear sometimes that attitude of "We can't let the other guys win" makes it all the more difficult to find the middle ground in the copyright debate.

posted by Patrick Ross @ 3:34 PM | Legislation and Legislators

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