May 18, 2001

The Honorable Rick Boucher
U.S. House of Representatives
2187 Rayburn House Office Building
Washington, DC 20515-4609

Dear Representative Boucher:

Hi!

I just put your guard dog to sleep, disabled your security system and "circumvented" your front door lock. It’s okay, because I’m not here for any criminal purpose. I just wanted to come in and read your books and play your CDs and watch your television. I would pay for my own, but that would be inconvenient and expensive. You go back to bed, now. I’ll close up when I leave.

Is that scenario at all akin to what you are suggesting become law for millions of Internet users who, as the Napster case so adequately demonstrated, only want to engage in some academic research and "share" fair use rights with all who have a modem?

We’re not altogether sure of the purpose of your "Reaffirmation of Fair Use Rights" speech, but it appears that you and other members of Congress want to establish the Internet as a new entitlement program. Every time we read one of these missives, we get the distinct impression that someone’s intellectual property is going to be worth less.

We are First Amendment purists, and we support legitimate fair use principles. We think academic freedom is necessary and libraries are vital. But we also support free market principles and the ability to protect intellectual property. We grow increasingly concerned that the legitimate concepts of free speech, fair use and academic freedom are being corrupted as a justification for mischief and mayhem. Thus diminished, they will be far more difficult to defend.

Digital technology and the Internet, while truly wondrous in their potential, are justifiably terrifying to owners of intellectual property who could be devastated by unauthorized copying. We doubt that much fair use research will be applied to "The Mummy Returns," but we can guarantee the results of unprotected pure digital transmission.

We do not doubt the intent of your speech, nor the need to frequently revisit issues arising from developing technology. But some of your premises are highly speculative, more of your analogies are false, and all of your six principles are fraught with peril.

As the recent case involving the Princeton-led research team instructs, even the latest attempts at effective "watermarking" can be decoded. Furthermore, the contretemps over that activity is, shall we say, a bit too pungent to provide comfort in the arena of academic research.

The dilemma for all who stand to lose is that there simply are no codes that cannot be cracked. Before you suggest that CDs be stored in Internet "lockers" for the convenience of consumers, perhaps you would consider putting all of your personal, private papers in one and letting those Princeton guys have a go at your stuff.

It is premature to address all of our concerns about your speech, some of which can be better enunciated by technology authorities. Suffice it to say that as it stands we would register significant opposition should it become draft legislation. We hope you will think more about it, including whether such tenets as consumer "convenience" and "reasonable expectations" for time shifting truly constitute a proper role of Congress. As Judge Newman, of the Second Circuit Court of Appeals, asked earlier this month, "Have we ever said that you not only get to make fair use, but you get to make it in the most technologically modern way?"

The Center for Individual Freedom is a non-partisan, non-profit organization with the mission to examine and focus public, legislative and judicial attention on individual freedoms and individual rights guaranteed by the U.S. Constitution. Within that mission lies our commitment to the fundamental rights of intellectual property owners. We believe, as the courts have long held, that copyright is a vital "engine of free expression."

Sincerely,

Tom Humber

President