The Digital-Music Politico

When it comes to the politicians who truly "get" digital music, Rep. Rick Boucher is way out in front of the pack. Although the Virginia Democrat hasn't grabbed as much of the spotlight as Sen. Orrin Hatch, the Utah Republican who fancies himself a down-in-the-trenches musician on occasion, Boucher has gained geek credibility with his outspoken views on issues near and dear to the hearts of digital-music aficionados.

Boucher is currently drafting legislation that would amend a section of the 1998 Digital Millennium Copyright Act, which makes it a crime to traffic in tools designed primarily to circumvent copyright-control measures. Given the advent of MusicNet and Pressplay, the two big digital-music subscription services slated for launch later this year, Boucher also believes it's necessary to modify current laws to create a way for digital-music delivery services to legally make and sell copies of a copyrighted work, and to level the playing field for smaller independent sites when they compete with the big guys.

The fight to reaffirm rights of fair use – the ability to make limited copies of copyrighted works without paying fees or getting prior approval – is a familiar one to the gentleman from Virginia. He's been speaking out on the need for a change to the DMCA since it passed in 1998, and he's not alone: Many, including the grassroots Electronic Frontier Foundation, think the law's ostensible purpose of preventing copyright piracy has trampled traditional fair-use rights.

We caught up with Boucher via phone from his Washington, D.C., office, where he talked about the changes he'd like to make to the DMCA. He also pointed out that the public is getting a crash course in what he views as the act's flaws, with the FBI's July 16 arrest of Russian programmer Dmitry Sklyarov on accusations that he built software that circumvented e-book security. Boucher believes that because the software had multiple uses - it wasn't designed solely to circumvent e-books' copyright controls – Sklyarov's prosecution under the DMCA is unconstitutional.

Beyond that case, Boucher believes that many segments of society have a vested interest in seeing the DMCA amended: "Libraries, universities and the scholastic community are announcing in a rising chorus of concern their belief that fair-use rights will be undermined" through the DMCA, he says.

For an example of the potential chilling effect, look no further than a recent fair-use flap over the act's Section 1201 (which specifically criminalizes circumvention of technologies that protect copyrighted work). In the ongoing saga, Princeton University Professor Edward Felten was threatened with a DMCA lawsuit by the Secure Digital Music Initiative when he announced plans to publish a paper outlining how to break SDMI's proposed watermarking technology. Felten has since brought suit against the SDMI and the Recording Industry Association of America, asking that he be allowed to publish the research.

Boucher says he believed from the beginning that the language of the DMCA was flawed and tried back in 1998 to narrow its scope of crime to instances where the sole intent was to infringe copyright.

In spite of certain opposition from the entertainment industry, Boucher is ready to get back in the trenches with his draft legislation, and he thinks he has a real chance to amend the DMCA, given the current focus on the Sklyarov case. "Everyone agrees that we should protect copyrights, but a law that effectively cedes total control of copyrighted material to the copyright owners goes beyond what is necessary to ensure fair compensation to the owner of the copyright," he says.

It's an ambitious plan, and Boucher isn't sure when he'll introduce the new proposed legislation, tentatively called the Digital Music Bill, though he thinks it most likely will be in the fall. Still, he doesn't rule out moving faster. "It could come as soon as this month. It could come later this week," he says. "We're still looking at timing."