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Prepared Statement of The Honorable Cliff Stearns Fair Use: Its Effects on Consumers and Industry
Subcommittee on Commerce, Trade, and Consumer Protection Good morning. I am pleased to welcome all of you to the Commerce, Trade, and Consumer Protection Subcommittee hearing on "fair use." The principle of fair use is an important, if not well-defined component of copyright law. Simply stated, the fair use doctrine allows free use of copyrighted material for purposes such as comment and criticism, news reporting, teaching, scholarship, and research. To determine whether a particular use is "fair" four factors must be applied to the facts of the case. As with most simplifications, the devil is in the details - and fair use is not short on details. The fair use doctrine is a list of factors, applied after the fact, and subject to broad interpretation by the courts. All copying is subject to challenge by the copyright holder. Fair use is a defense. The only way for someone to know whether a use is in fact a fair use is to finally resolve it through litigation. This can be costly and time-consuming. Further complicating the inherent tensions surrounding fair use, is the rapid advancement of digital media and the Internet to allow flawless reproduction of creative material and light-speed dissemination of that material across the globe. Technologies such as "browsing", "linking", and "streaming" were not even imagined during the formative years of the "fair use" doctrine but now are at the heart of a debate involving fair use and the implications of rapidly-evolving technologies. I doubt we are going to solve all of these issues this morning but what I hope is that we can have a reasoned and thoughtful examination of the law of copyright and "fair use," how technology is making traditional "fair use" analysis and distinctions more nuanced, and how consumers are faring in the middle of all this. With today's hearing, I also would like to lay the groundwork for further examination of H.R. 1201, my friend and colleague Mr. Boucher's bill. H.R. 1201 would allow the circumvention of anti-piracy, encryption technology in instances when a user intends to make "fair use" of the underlying work. The Digital Millennium Copyright Act (DMCA), passed in 1998, created civil and criminal penalties for "circumventing" encryption and other technology designed to prevent tampering or "hacking" into copyrighted material. But it can also prevent fair use. I believe the affects of the DMCA to lock out consumers from the proper and fair use of material is a perverse result of the law. Also known as digital rights management or "DRM", the DMCA also extends its prohibitions to those who sell or trade in technology designed to break encryption technology or "circumvent" it. Mr. Boucher's bill would allow for the development of technologies that assist consumers in fair use of copyrighted material. This is a noble pursuit but when we consider the real and growing threat of piracy and hacking, it becomes very obvious that such a policy could be easily exploited by criminals and hackers looking to make a fast buck on someone else's creative genius. While I would like to explore the issues HR 1201 seeks to remedy, I think the cleaner solution to this lies in technology, not necessarily legislation. On that note, I have a number of issues I would like to discuss here today. The first question I have is whether we have gotten any closer to technology that would allow a limited number of protective copies to be made of copyright-protected works. According to Mr. Valenti, representing the Motion Picture Association before the Subcommittee last year, "Keep in mind that, once copy protection is circumvented, there is no known technology that can limit the number of copies that can be produced from the original." I would like to know about the state of technology in this area. I can't think that this is not a solvable challenge. Why don't we make it the copyright equivalent of the race to the moon. We went to the moon almost 40 years ago - it seems to me technology should afford a means of limiting the number of copies we can make of a protected work. Absent promising news on the technology front, I assume we will have to allow the legislative process to work and see if that will yield a solution, although perhaps an inelegant one. In closing, as I said last year, I support fair and balanced intellectual property laws but I also understand that the rest of the world sometimes doesn't play by our rules. I believe there is a balance to be achieved here but I think technology is the best way to manage that balance and protect the rights of both the creators of works and the consumers who purchase, use, and improve upon them for the benefit of all. I welcome the witnesses today and look forward to their testimony.
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