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TESTIMONY BEFORE THE
HOUSE SUBCOMMITTEE ON COMMERCE, TRADE AND CONSUMER PROTECTION
“H.R. 107, THE DIGITAL MEDIA CONSUMERS’ RIGHTS ACT OF 2003”
ENERGY AND COMMERCE COMMITTEE
U.S. HOUSE OF REPRESENTATIVES
WEDNESDAY, MAY 12, 2004
BY
THE HONORABLE AL SWIFT
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My name is Al Swift. I spent sixteen rewarding, and I hope productive years, serving on this Committee. It is good to be back in this room, even if only for a little while. Before Congress I was a broadcaster. I was a disc jockey so long ago we did not even yell at our listeners. Today I am a lobbyist for the firm of Colling Murphy Swift Hynes Selfridge. Our firm has no clients on any side of the issue in question today. I am testifying as an informed private citizen, with a background in communications. I had a great interest in these matters while on the Committee and continue that interest today.
I think I was in my first year of high school when I bought – with money I earned after school working in a hardware store – my first tape machine. It was a reel-to-reel machine. It was supposed to be a portable, but it weighed a ton. And all I had to record onto it were 78 rpm records. The 45 didn’t show up until I was in college. I’ve been a home recordist for about 54 years. In that time, I have given friends many tapes, cassettes and now CDs containing “programs” I have created from my own collection of LPs and CDs. In that time, I have never made a straight duplicate of a record for anyone. If they ask me to, I tell them politely how easy is it to buy it on the Internet. In that time I have never charged a person a penny – even for the cost of the raw cassette or CD blank. It is just my hobby.
I respect our copyright laws. I do not believe that anyone should be allowed to use copyrighted material for profit without appropriate permission, license and payment. I think the industry is right to protect itself against piracy.
But, one of the things I noticed serving in Congress on this Committee is that some people have a remarkable ability to carry a good idea to a bad extreme. Look at the history of the recording industries. They have always distrusted new technology. If Hollywood had been given its way the video tapes and DVDs, from which they now make a great percentage of their profits, would have been smothered in their bassinettes. This Committee reported out a perfectly absurd bill that – the industry claimed – was essential to prevent the Digital Audio Tape (DAT) machines from destroying the recording industry. Now you can hardly find a DAT machine – except for commercial purposes.
And the industry – in an effort to prevent pirates from duplicating their products – have persuaded Congress to adopt statutes that prevent home recordists like me – and millions who are not quite so fixated on the process as I am – from making duplicates without severe restrictions. If you want to make a copy for your car and one for your wife’s and one for the boat and another for the cabin – that is hard to do because of technical restrictions the industry wanted and Congress gave to them.
When I buy a CD or a DVD, that content should be wholly mine to do with as I please as long as I am in no way selling its contents or profiting from it. As for equipment: I recently bought a dual CD burner that was touted as making a copy in a quarter of real time – in 15 minutes instead of one hour. I installed it and tried to make a quick copy of one of the CDs I had produced. It wouldn’t do it. Calling the company to ask what I was doing wrong, I was told that I was doing nothing wrong. Under the law, they could not let me fast-duplicate anything except an original recording. Someone had just put their hand in my pocket and taken some money from me –– all in the name of protecting themselves from theft.
That is not a fair resolution of their problem. What the recording industries apparently want is so broad that it goes way beyond their legitimate interests and intrudes well into the legitimate interests of millions of consumers. In America we do not normally right a wrong for one group by transferring the wrong to another group. But that is what has happened on this issue.
Furthermore, the present statute does not grant the American consumer what anyone brought up on a criminal charge is entitled to: the presumption of innocence. Present law is predicated on the assumption that consumers will rip-off copyright holders. The vast majority are innocent of that assumption, but all are treated as guilty.
Congressmen Boucher and Doolittle have offered a sound and modest correction. I say “modest” because I would be inclined to go further. But this bill is no doubt more prudent than I would be and – in the long run – prudence usually produces better law.
Modern technology clearly poses real problems for protecting intellectual property in the traditional ways. It is unclear how we can make the transition to a different form of protection that solves the problems technology has created. But taking hammers to the weaving machines did not save the looms at the beginning of the industrial age. And statutes that hammer the consumer now, will, in the end, not resolve this matter. In fact, I would be willing to bet that – at this very moment – someone is developing technological innovation that will make the legal strictures now in place useless to the proponents as well as irritating to the consumers.
So I would commend this bill to this Committee. This is a clear opportunity to draw a balance between protecting the legitimate copyright interests of the industries involved and the legitimate rights of the average American consumer – who, let us remember, is not in the wholesale pirating business. Others do that. The American consumer is no threat to these industries. Instead, they are the industries’ source of wealth. I own 3,000 CDs at an average price of say – conservatively – $13 each. You do the math. You will find not only that my hobby spending is out of control. You will also find that I am – like other American consumers – a profit center for these businesses. It is about time they treated us with a little respect.
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