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Is 'Fair Use' in Peril? 

The far-reaching Intellectual Property Protection Act would 
deny consumers many of the freedoms they take for granted. 

By Eric Hellweg 

November 19, 2004,

Do you like fast-forwarding through commercials on a 
television program you've recorded? How much do you like it? 
Enough to go to jail if you're caught doing it? If a new 
copyright and intellectual property omnibus bill sitting on 
Congress's desk passes, that may be the choice you'll face. 

How can this be possible? Because language that makes fast- 
forwarding through commercials illegal-no doubt inserted at 
the behest of lobbyists for the advertising industry-was 
inserted into a bill that would allow people to fast forward 
past objectionable sections of a recorded movie (and I bet you 
already thought that was OK). And that's but one, albeit 
scary, scenario that may come to pass if the Intellectual 
Property Protection Act is enacted into law. Deliberations on 
this legislation will be one of the tasks for the lame-duck 
Congress that commenced this week. 

In a statement last month, Senator John McCain stated his 
opposition to this bill, and specifically cited the anti- 
commercial skipping feature: 'Americans have been recording TV 
shows and fast-forwarding through commercials for 30 years,' 
he said. 'Do we really expect to throw people in jail in 2004 
for behavior they've been engaged in for more than a quarter 

Included in the legislation are eight separate bills, five of 
which have already passed one branch of Congress, one of which 
was approved by the Senate Judiciary Committee, and two of 
which have merely been proposed. By lumping all the bills 
together and pushing the package through both houses of 
Congress, proponents hope to score an enormous victory for 
Hollywood and some content industries. 

Here's more of what's included: a provision that would make it 
a felony to record a movie in a theater for future 
distribution on a peer-to-peer network. IPPA would also 
criminalize the currently legal act of using the sharing 
capacity of iTunes, Apple's popular music software program; 
the legislation equates that act with the indiscriminate file 
sharing on popular peer-to-peer programs. Currently, with 
iTunes, users can opt to share a playlist with others on their 
network. IPPA doesn't differentiate this innocuous-and Apple 
sanctioned-act from the promiscuous sharing that happens when 
someone makes a music collection available to five million 
strangers on Kazaa or Grokster. 

Not surprisingly, the bill has become a focal point for very 
vocal parties. In favor of the legislation are groups such as 
the Recording Industry Association of America, the Motion 
Picture Association of America, and various songwriter, actor, 
and director organizations. 'We certainly support it,' says 
Jonathan Lamy, spokesperson for the RIAA. 'It includes a 
number of things to strengthen the hand of law enforcement to 
combat piracy. Intellectual property theft is a national 
security crime. It's appropriate that the fed dedicate 
resources to deter and prosecute IP theft.' 

Against the bill stand a number of technology lobbying groups 
and public-interest organizations. '[IPPA] is a cobbled- 
together package to which Congress has given inadequate 
attention. It is another step in Hollywood and the recording 
industry's campaign to exert more control over content,' says 
Gigi Sohn, president of Public Knowledge, a Washington, DC- 
based public interest group that aims to alert the public to 
fair use and consumer rights infringements, and fight those 
perceived infringements in Washington. 

Anyone attuned to the machinations of Congress the last two 
years likely has become numb to the often overblown rhetoric 
on this issue. Both sides use hyperbole-usually in the form of 
calling a piece of legislation the death of an industry or the 
death of individual rights. The 1982 statement to a 
congressional committee by Jack Valenti, then head of the 
MPAA, that the VCR is to Hollywood what the Boston Strangler 
was to a woman alone still stands as the ne plus ultra of 
exaggerated claims. And civil libertarians haven't met an 
affront that didn't equal a stake through the heart of 
individual rights. But IPPA demands attention not just from 
Hill watchers, but from regular individuals. In part because 
IPPA is such a broad, encompassing bill that could affect 
things as pedestrian as fast-forwarding a commercial, but also 
because with Senator Orrin Hatch-a very Hollywood-friendly 
pol-on his way out as the chair of the Senate Judiciary 
Committee, to be replaced possibly by Arlen Specter, many in 
the Hollywood community see this as an important, last chance 
to get their demands made into law. 

[Eric Hellweg is a technology writer based in Cambridge, MA.] 
For updates and info, contact scott at planttrees dot org.