Rep. Rick Boucher (D-VA) may be the first congressman we've seen who actually gets it. On Tuesday, he gave the keynote address at a Consumer Electronics Association Conference known as "Digital Download: Public Access to Content in a Digital World." In that address, we see the first hints that members of Congress may actually be having second thoughts about the Digital Millennium Copyright Act.

His words are cautious but telling. It's obvious that there is some unease about the heavyhandedness with which the DMCA has, and will be, applied. We can't expect a congressman to come out full force against the MPAA and all of the corporate interests they represent. But what he did say is significant and addresses the concerns that so many have been expressing since this whole nightmare began.

Let's hope this is the beginning of a trend. In the meantime, please convey your feelings to his office and to that of your elected officials as well.

Here are the relevant sections of his speech:

"The time, in my opinion, has come, for the Congress to reaffirm the fair use doctrine, and to bolster specific fair use rights, which are now at risk. In 1998, responding to the concerns of copyright owners, Congress passed the Digital Millennium Copyright Act. The announced purpose was to protect from piracy copyrighted material in an environment which poses special concerns for copyright owners. They made the point that with digital technology, a copy of a copy of a copy has the same clarity and perfection as the original of the work. They also made the point that in the networked environment, with the single click of a mouse, thousands of those perfect copies can be sent people throughout the nation and the world.

"The DMCA is the result of the effort by Congress to respond to those realities. There are some today who believe that the legislation went too far. For example, it creates, in Section 1201(a), a new crime of circumventing a technological protection measure, that guards access to a copyrighted work. Under Section 1201, the purpose of the circumvention is immaterial. It is a crime to circumvent the password or other gateway, even for the purpose of exercising fair use rights. There is no requirement that the circumvention be for the purpose of infringing the copyrights. Any act of circumvention, without the consent of the copyright owner, is made criminal under Section 1201.

"Some now foresee a time when virtually all new material will be sent to libraries on CD ROMs, with the material encrypted or guarded by passwords. In exchange for a fee for each viewing, the password may then be used. And so it is predicted that under Section 1201, what is available today on the library shelves for free will be available on a pay per use basis only. The student who wants even the most basic access to material to write his term paper will have to pay for each item that he uses.

"Several of us made an effort in 1998 to limit the new crime under Section 1201 to circumvention for the purpose of infringement. But in the momentum to enact the measure, essentially unamended, we were not able to have that change adopted. With the growing realization on the part of the education community, and supporters of libraries, of the threat to fair use rights which Section 1201 poses, perhaps the time will soon come for a Congressional reexamination of this provision.

"Perhaps the only conduct that should be declared criminal is circumvention for the purpose of infringement. Perhaps a more limited amendment could be crafted to ensure the continued exercise of fair use rights of libraries, and in scholastic settings, notwithstanding the provisions of Section 1201.

"And I think there are other challenges. I am concerned by the apparent attempt of some in the content community to seek to protect their copyright interests in material contained in television programs by insisting that the TV signal quality be degraded, or by insisting on the use of settop box technology which prohibits all copying. The reasonable expectations of television viewers to be able to make copies of programs for time shifting, and other historically accepted purposes, must be honored, and must be fulfilled."

For the full text of Rep. Boucher's remarks, visit http://www.techlawjournal.com/intelpro/20010306boucher.asp

Rep. Boucher's page