Public Knowledge President Gigi B. Sohn testified before the House Judiciary Committee Subcommittee on Courts, the Internet and Intellectual Property on November 3rd, 2005.

Mr. Chairman, Ranking Member Berman and members of the subcommittee, my name is Gigi Sohn. I am President of Public Knowledge, a nonprofit organization that seeks to protect the public's rights in debates over copyright law and communications policy. Thank you for inviting me to testify today.

We are living in a time of great technological innovation and artistic abundance, and consumers -- your constituents -- are the beneficiaries. Consumers have never had so much choice, so much flexibility and so much opportunity to become creators themselves.

iPods and other MP3 players provide a fun and convenient way to listen to music, books and podcasts. TiVo, EyeTV and Slingbox allow you to watch your favorite TV shows when and where you want.

New services like satellite digital radio and digital broadcast radio are giving consumers more opportunities to hear the music they love and the news and information they crave. As the DTV transition kicks into high gear, we will be able to choose from multiple program streams of high definition news, sports and entertainment.

The opportunities for the content industry to profit from new digital technologies are increasing every day. Sales of DVDs are generating enormous revenues. iTunes just announced that in a few short weeks it has sold one million programs for use on its new video iPod. And Mr. Bainwol said in an interview yesterday that he estimates that legitimate online song purchases could supplant CD retail losses by 2007. As the content industry has ramped up its online delivery of content, it has been testing a variety of protection measures that provide both security for the industry and flexibility for consumers.

Despite all this exciting activity, we are here today to discuss three draft bills that could bring this technological and artistic renaissance to a grinding halt.

The first bill would reinstate the FCC's vacated broadcast flag rule. This would give the agency unprecedented control over technological design. It would make them the arbiter of the rights of content owners and the public under copyright law. Ask yourselves, is it good policy to turn the Federal Communications Commission into the Federal Computer Commission or the Federal Copyright Commission? Should the FCC decide which technologies will succeed in the marketplace and which will fail? The flag scheme would prohibit lawful uses of content, including use of broadcast TV excerpts online and for distance learning. For example: the Parents Television Council, a TV watchdog, makes available clips of the week's best and worst broadcast TV shows on its website. The flag scheme would prevent this way of educating parents about the shows their children watch. Nor could Members of Congress email a broadcast TV news appearance to their home offices. Moreover, the flag scheme will cause great consumer inconvenience, confusion and cost because different approved technologies are not compatible with each other. Rather than encourage the transition to digital TV, the limitations of the flag scheme hamper it.

We have similar concerns about the second draft bill, which would place the FCC in the position of mandating content protection for digital satellite and broadcast radio. This legislation would permit the FCC to extinguish the long-protected consumer right to record radio transmissions for personal use. Furthermore, because the draft bill would impose limits on digital broadcast radio technology that, unlike digital TV, consumers need not adopt, those limits may well kill this fledgling technology. Why would consumers buy an expensive new digital broadcast radio receiver when it would have less functionality than their analog receiver?

Lastly, we must oppose the sweeping draft proposal to close the analog hole. Be assured, there is no industry or other consensus on the CGMS-A plus VEIL technology mandated in the bill. The prohibitions would require redesign of a whole range of currently legal consumer devices, including DVD recorders, personal video recorders and camcorders with video inputs. Moreover, it would restrict lawful uses of analog content. Importantly, the content industry itself has touted the analog hole as a "safety valve" for making fair use of digital media products where the DMCA has rendered illegal the circumvention of technological locks. Should Congress close that hole without amending the DMCA to protect fair use, consumers' rights to access digital copyrighted works will be eroded even further. For this reason, if Congress should move forward with any of these proposals, they must be considered in conjunction with H.R. 1201, which seeks to preserve consumers' rights under the DMCA.

Just because Public Knowledge opposes the three draft bills does not mean we oppose all content protection efforts. There are far better alternatives to the heavy-handed technology mandates proposed today. They include a multi-pronged approach of consumer education, enforcement of copyright laws and use of technological tools developed in the marketplace. The recent Grokster decision and the passage of the Family Entertainment and Copyright Act, spearheaded by you, Mr. Chairman, are just two of several new tools that the content industry has at its disposal to protect its content.

Members of the subcommittee, these proposals are controversial and do not reflect consensus. I am confident that after careful deliberation and with input from the public, you will conclude the marketplace, not the government, is the best arbiter of what technologies succeed or fail; and Congress, not the FCC, is the correct arbiter of the proper balance between content protection and consumer rights. Thank you.