November 18, 2004 · Lessig
Senator McCain has become an important force for good in the land of IP extremism. I reported a hold he had placed on H.R. 4077 because of valid concerns about whether the freedoms it granted (to enable parents to filter “smut” from films) would be read to deny fair use in other cases.
The same careful eye has now caught a very elegant trap buried within the Intellectual Property Protection Act of 2004.
That bill adds some “Anti-Counterfeiting Provisions” to regulate counterfeit or illicit “labels.” Most thought its target was physical labels. But a careful reading revealed a real ambiguity in the statute, suggesting (as the MPAA believed) it regulated both tangible and intangible labels.
Why is that a problem? Well if the act makes it an offence to distribute unauthorized copies of labels, then there’s a very simple way for content owners to hack around fair use: embed a watermark into the content, and then any clip, even if fair use, would also constitute an unauthorized copy of a label. Thus, DMCA-like, what copyright law gives, this labeling law would take away.
Senator McCain is thus floating an amendment, to limit the regulation of “illicit labels” to physical labels only. And he has proposed a savings clause, which states:
Savings Clause.–Nothing in Section 2318 of title 18, United States Code, as amended by this title, shall be construed to restrict defenses or limitations on rights under title 17, United States Code, for a phonorecord, a copy of a computer program, a copy of a motion picture or other audiovisual work, a copy of a literary work, a copy of a pictorial, graphic, or sculptural work, or a work of visual art, that a genuine certificate, licensing document, registration card, or similar labeling component is (1) affixed to, enclosing, or accompanying, or (2) designed to be affixed to, enclose, or accompany.
Very nice work by a very careful Senator. The Justice Department had expressed similar concerns about an earlier version in March. But the Senator has now given those concerns real life.