Would John Kerry defang the DMCA?

Commentary--The senator's first major departure from Bush hints at bolstering consumer rights over copyrights.
Written by Declan McCullagh, Contributor
Commentary--John Kerry finally has hinted at a position that would mark one of the first real differences from his Republican rival.

In a barely noticed remark on Thursday, the Democratic senator said he might support defanging the Digital Millennium Copyright Act (DMCA)--the unpopular law that has prompted take-to-the-street protests from the geek community.

If Kerry is serious, that would be a remarkable metamorphosis on a law that the Senate approved without one dissenting vote. It would also be remarkable because, contrary to what Kerry and President Bush tell you, few differences exist between the two White House hopefuls on nearly any topic imaginable.

On technology topics, there tend to be distinctions without differences.

Both supported the invasion of Iraq, both applauded the Patriot Act, and both agreed with sweeping expansions of federal spending on education. Neither politician has the moxie to say in public that he agrees with gay marriage, neither will end the war on drugs, and neither would countenance full privatization of Social Security.

Poor Jim Lehrer of PBS, who moderated the first presidential debate, was left scratching his head about what actually differentiated the two men who would be president. Was it Kerry's pledge to undertake two-party talks with North Korea versus Bush's preference for six-party talks?

On technology topics as well, as I wrote in a column in June, there tend to be distinctions without differences. The Democratic and Republican candidates have been singing in two-party harmony about technological innovation, broadband, Wi-Fi, spectrum auctions, and their mutual love for the research and development tax credit.

Still, a few divergences became clear last week with the release of a set of answers that the Bush and Kerry campaigns provided to a dozen questions posed by the nonpartisan Computing Technology Industry Association.

Inalienable right to make backups
Kerry's campaign said the senator might support rewriting U.S. copyright law to let Americans make backup copies of digital media they've purchased.

Pay attention, folks: In the tech world, this maybe-or-maybe-not pusillanimity counts as headline-grabbing news. Right now, under the DMCA, it's unlawful to make a backup copy of copy-protected DVDs or computer programs. The 1998 DMCA broadly bans "circumventing" anticopying schemes, and selling software that can do so is a criminal offense.

Kerry's survey response said he is "open to examining" whether to change current law "to ensure that a person who lawfully obtains or receives a transmission of a digital work may back up a copy of it for archival purposes" or transfer it to another device. CompTIA's open-ended question had merely asked "What should federal policy be toward protecting intellectual property on the Internet?"--without mentioning backup copies.

If the senator had time last year to announce two bills dealing with tariffs on imported "pouch tuna" from Indonesia, he surely had time to help defang the DMCA.

This is no theoretical debate. 321 Studios was forced to shut its doors in August, after a federal judge blocked the small company from selling its DVD backup software. 321 Studios' utility, the judge said, ran afoul of the DMCA's anticircumvention restrictions.

Kerry's answer appears to be a tentative attempt to side with consumers and electronics makers over the entertainment industry--a rare display of political independence by a prominent Democrat. (Hollywood firms hand money to Democrats over Republicans by a 2-to-1 margin.)

How serious are these guys?
It's not clear, though, how serious Kerry truly is. Reps. Rick Boucher and John Doolittle introduced their bill to defang the DMCA more than two years ago and have been searching in vain for a Senate sponsor. Kerry, a member of the committee overseeing e-commerce, could have lent a hand but never did. If the senator had time last year to announce two bills dealing with tariffs on imported "pouch tuna" from Indonesia, he surely had time to help Boucher and Doolittle.

The Bush administration's stand, on the other hand, is entirely clear: defend the DMCA at any cost. Bush's reply to CompTIA said: "I strongly support efforts to protect intellectual property and will continue to work with Congress to ensure all intellectual property is properly protected."

Buttressing this stand is a report released this month by Bush's Department of Justice. It insists that the DMCA remain intact, saying U.S. law must prohibit "deliberate and unauthorized circumvention." Meanwhile, Bush's trade negotiators have been busy exporting the DMCA to Australia, Chile and Singapore, and Attorney General John Ashcroft invoked the DMCA when trying to imprison Russian programmer Dmitri Sklyarov.

Two other modest differences arose in the candidates' responses to CompTIA's questions about voice over Internet Protocol (VoIP) and spam. In both cases, Bush was far more explicit about what he would do if Americans pick him on Election Day.

On VoIP, Bush praised the technology and suggested that regulators treat it like e-mail--that is, take a laissez-faire approach--instead of weighing it down with the raft of rules that apply to the telephone network. On unsolicited bulk e-mail, Bush predictably touted the Can-Spam Act, which he signed into law last December.

Oddly, Kerry ducked both questions. In both cases, he said only that he's "open" to considering any approach.

That might work for a small-town lawyer running for election as a state legislator. But it's unseemly when coming from a guy who's been in the Senate for two decades and is a senior member on the only two subcommittees that oversee, well, VoIP and spam. It's also important because the Federal Communications Commission voted 3-2 along party lines in February to exempt "pure" VoIP companies from traditional telecommunications regulations. The two Democratic commissioners opposed that move. What side would a President Kerry take?

Unfortunately, both major-party candidates are savvy enough to realize that Americans don't pick presidents based on their telecommunications policies. The problem is that there are so few substantial distinctions in other areas. Just ask Jim Lehrer. biography
Declan McCullagh is CNET News.com's Washington, D.C., correspondent. He chronicles the busy intersection between technology and politics. Before that, he worked for several years as Washington bureau chief for Wired News. He has also worked as a reporter for The Netly News, Time magazine and HotWired.
Editorial standards