INTEL, MPAA, CEA NOT PART OF ACCORD BETWEEN RIAA AND TECH GROUPS

RIAA Chmn. Hilary Rosen said Tues. fair use provision was “a loophole big enough to drive a truck through.” “Ultimately the Boucher bill would not pass the test of these principles” agreed to by RIAA, BSA and CSPP, Rosen said. While RIAA secured formal opposition to Boucher’s approach from BSA and CSPP, she abandoned RIAA’s policy of accepting technology mandates as last resort.

MPAA didn’t join coalition because, unlike RIAA, it wasn’t willing to give up on technology mandates. “We are not prepared to abandon the option of seeking technical protection measures via the Congress or appropriate regulatory agency,” MPAA Pres. Jack Valenti said, adding that “no reasonable alternative course of action should be eliminated from consideration.” Still, Valenti praised high- tech groups for agreeing to oppose DMCA modification. (In fact, BSA already was on record in defense of DMCA as is, although CSPP had yet to take position on it, as Exec. Dir. Ken Kay acknowledged Tues.). One of early backers of Hollings’ approach was Disney Exec. Vp Preston Padden. He said “the private sector cannot solve this problem by itself… consumers will be best served by prompt government facilitation of reasonable content protection standards” that will boost online content. He also echoed Capitol Hill testimony by Rosen from last year by bringing up music industry’s failed Secure Digital Music Initiative (SDMI). Rosen had pointed to that failed series of talks last year in expressing support for Hollings’ bill.

Also not part of accord was CEA. CEA Pres. Gary Shapiro said CEA members “welcome the RIAA’s apparent opposition to government mandates… which would limit consumers’ home recording and fair use rights.” He said he continued to support interindustry negotiations, but differed from agreement Tues. by saying “we continue to believe that legislation is required to strike the necessary balance between protecting copyrights and consumers’ fair use rights. To that end, we join numerous technology companies and consumer rights advocates in strongly supporting” HR-107 by Boucher and Doolittle.

One question mark on joint policy positions was role of Intel. Chip maker is member of CSPP and BSA, but supports Boucher-Doolittle HR-107 fair use bill. Rosen dismissed bill Tues. but Kay said only “that’s not a judgment I'm prepared to make yet.” Boucher late Mon. preemptively struck at accord, saying Intel remained supportive of HR-107. “The absence of organizations which are critical to the issues surrounding the fair use debate must be considered when characterizing the significance of this agreement,” Boucher said, noting that not only MPAA and CEA were on sidelines, but also Sun Microsystems, Gateway and Verizon. Gateway found itself under heat last summer for TV ads that RIAA maintained promoted piracy, while Verizon is being sued by RIAA under DMCA.

While much of discussion Tues. involved specific pieces of legislation introduced last year, leaders of 3 groups said their agreement was broader. Agreement’s provisions “weren’t drafted to specific nuances of certain legislation,” Rosen said. Still, she acknowledged that “many in Congress will continue to view legislative solutions.” While principles mostly state what Congress shouldn’t do, Rosen when asked said there was “a strong role for Congress.” That included, she said: (1) Resources for law enforcement. (2) Funding for an education campaign. (3) Support for private-sector discussions. House Judiciary Committee ranking Democrat Conyers (Mich.) said it was “long past time for a solution to the problem of Internet shoplifting,” adding “[m]y colleagues and I will be monitoring these negotiations very closely, and I am prepared to press for legislative action should the negotiations break down.”

Much has been made of copyright battle between high-tech and the content community, so-called Hollywood v. Silicon Valley fight. But both sides have in common strong reliance on intellectual property, and that commonality is reflected in their 7 policy principles: (1) Increase public awareness of piracy costs, with Congress perhaps funding part of campaign. (2) Consider consumer expectations (which Rosen said was comparable with fair use) that should be driven by the marketplace “and should not be legislated or regulated.” Rosen spoke of model where consumers could purchase various rights with content varying by price. (3) Provide more private and govt. enforcement against copyright infringers.

(4) Work together on digital rights management (DRM) solutions “without government-imposed requirements for the incorporation of specific functionality in a computer or other device.” That was fear of BSA and CSPP with bill last Congress by then-Senate Commerce Committee Chmn. Hollings (D- S.C.). (5) Assure content owners have right to take action against infringers as long as they aren’t destructive and don’t violate individuals’ legal rights. That echoes bill last year by House Judiciary Courts, Internet & Intellectual Property Subcommittee ranking Democrat Berman (Cal.).

(6) Agree, again echoing Hollings legislation, that “technical protection measures dictated by the government… are not practical.” However, both Rosen and BSA Pres. Robert Holleyman told us separately after news conference that if various industries were to agree on DRM standard, Congress might then be asked to codify it, much as it did with Macrovision DVD technology. Rosen suggested RIAA would seek such codification, which reflected her past congressional testimony on the subject, while Holleyman was more passive, saying his members wouldn’t oppose such move. (7) Agree to “engage in constructive dialogue and look for common ground in policy debates.” CSPP Exec. Dir. Ken Kay said that in next several weeks date would be set for business executives from 3 associations’ member companies to discuss these policy principles. Rosen emphasized that talks wouldn’t be standards-setting process. Pressed by reporters, she said initial meetings would include just companies from 3 groups, but she didn’t rule out including other parties, such as consumer groups or MPAA.

In statements and congressional testimony last year, Rosen frequently praised Hollings’ bill, but in each case she focused on its role in stimulating private-sector debate. Upon introduction of bill in March, she said it was “a wake- up call to the information technology and consumer electronics industries that the time has come to achieve a voluntary marketplace solution to the growing threat of online piracy.” In written testimony for Hollings’ hearing before he introduced bill, Rosen said RIAA was “not interested in polarizing relationships with the technology industry [underscore in original].” “The private sector should be given every reasonable opportunity to adopt appropriate technological solutions,” she said, and when outlining possible actions by federal govt., she suggested “enhanced legal remedies, more active enforcement of the law, or legislation requiring implementation of technical standards to ensure that all technology companies provide this same level of needed protection [italics and underscore in original].” However, just before possible govt. implementation of technical standards, she said she hoped those standards came from interindustry negotiations.

Other reactions to agreement: (1) Assn. for Competitive Technology Pres. Jonathan Zuck said his group “welcomes the decision by RIAA, BSA and CSPP to collectively lay down their legislative swords.” ACT, which represents Microsoft as well as many small technology companies, has long been defender of intellectual property. (2) Americans for Technology Leadership (ATL) Exec. Dir. James Prendergast also applauded agreement for opposing technology mandates “and finding ways to work together to develop market-based solutions to the digital piracy issue,” calling Hollings bill result of “back- room deals and special interest[s].” He said he hoped MPAA would change its position and join accord.

Rosen said groups saw accord as “marrying the marketplace” with public policy rhetoric to avoid “needless battles and rhetorical arguments,” including “needless legislative battles.” Holleyman said that should be welcome on Hill: “The most common plea we hear from Congress is, ‘Why can’t you work this out?'” Asked about vitriolic rhetoric that has circulated in this debate, Rosen said she hoped accord would “take down the rhetoric” but acknowledged that they couldn’t change way others spoke on issue: “We can control ourselves.” As to how coalition began, Rosen said: “I called them. They took my call.”