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Reply from Senator Carper
2/2/2007 7:25:00 PM

Just received this reply from Senator Carper.  Although it was kind of him to write such a detailed reply, I thought he hedged on both sides...

Dear Mr. Yanis:

Thank you for contacting me regarding S. 256, the PERFORM.  I appreciate hearing your views on this important issue.
As you probably know, the fair use doctrine in copyright law allows, under certain circumstances, the unauthorized use of copyrighted material.  The Copyright Act of 1976 establishes four criteria for determining whether or not an unauthorized use of a work violates the rights of the copyright owner.  These criteria are:  1) the amount and character of the use; 2) the nature of the copyrighted work; 3) the amount copied in relation to the whole copyrighted work; and 4) the effect of the copying on the potential market for the copyrighted work.
Courts have historically applied the fair use doctrine on a case-by-case basis in establishing an equitable balance between the rights of the copyright owner and the rights of those who use the copyrighted work without authorization.  However, court decisions have made it clear that it is the responsibility of Congress, and not of the courts, to strike an optimal balance between both sets of rights. 
Recent and rapid advancements in technology have renewed the debate in Congress over the appropriate balance between these sets of rights.  Through the Internet, consumers can attain virtually perfect reproductions of copyrighted works with a click of a mouse, and distribute works just as easily.  In response, Congress passed the Digital Millennium Copyright Act (DMCA) in 1998, to provide copyright owners protection from the rapidly growing communities of Internet users who participate in this unauthorized attainment and distribution of copyrighted works.  Critics of the DMCA believe that the Act went too far to protect the rights of the copyright owner.
Although I was not a member of Congress when it passed the DMCA, I agree that providing copyright owners protection from illegal use of technology should not come at the total expense of fair use rights.  Having said that, I believe that Congress needs to consider practical solutions that include preventing content piracy, keeping up with the exponential progress of technology, and upholding the fair use rights of content users.  
Last year, the U.S. government launched an education campaign to curb illegal copying of movies, music, and computer software.  According to recent reports, the Recording Industry Association of America lost an estimated $4.6 billion, and the Motion Picture Association of America lost $30 billion due to piracy last year.  As you know, Senator Dianne Feinstein (D-CA) recently introduced the PERFORM Act (S. 256), a bill to help combat copyright infringement.  It would expand the Justice Department's authority by allowing it to file civil copyright infringement cases against violators who intend to induce others to infringe copyrights. 
That being said, I would not support legislation that would prevent the advancement of technology, or that would prevent Americans from using every day technology, such as VCR's, file sharing networks, and Apple iPods.  At this time, S. 256 is currently pending in Senate Judiciary Committee.   If I have an opportunity to vote on S. 256 or similar legislation, please be assured that I will keep your views in mind.  Thank you again for expressing your thoughts regarding copyright law legislation in the age of the Internet.  Please feel free to contact me in the future regarding this, or another issue of importance to you.
With best personal regards, I am


Tom Carper
United States Senator

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