Rick Boucher

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, this debate comes very late, and it comes in a procedurally awkward manner. The resolution of censure that I am pleased to offer today was made in order for consideration in the Committee on the Judiciary by the gentleman from Illinois (Mr. Hyde), the chairman. He understood the importance of an evenhanded process. He understood the need for balance. He perceived that fairness required the availability to the Members of the outcome for this investigation, which is the clear preference of the American people, the passage of a resolution of censure that admonishes the President for his conduct. I commend the gentleman from Illinois (Mr. Hyde) for that evenhandedness. I can only wish that his example had been followed by the majority leadership in the House. With the leadership's concurrence, the Committee on Rules could have been convened, and a procedural resolution allowing floor consideration of both the articles of impeachment and a resolution of censure could have been reported and adopted by the House. This censure resolution could have and should have been made in order from the start. But that did not occur. The Members of the House did not have a censure alternative available to them from the beginning, and a point of order has been reserved to this resolution offered at the present time. I very much regret this procedure. I think it is a monument to unfairness. Not only is a censure and rebuke of the President the public's clear choice, but it is the right thing to do. The constitutional history clearly instructs us that the presidential impeachment power is to be used only as a last resort at times of true national emergency. Its purpose is to remove from office a president whose conduct threatens the very foundations of our system of government. It is a drastic remedy for the removal of a tyrant. It should not be used to remove a president whose offense is a shameful affair and its efforts to conceal it. For that offense he can be tried in a court of law. For that offense he can and should be censured by this House. That would be a perfect expression of the public's entirely justified outrage. But to use the impeachment power for that conduct defines it down, cheapens its use, lowers the standard of impeachment for all time, and will inherently weaken the presidential office. Censure is the right approach. I urge approval of this resolution. Mr. Speaker, I am pleased to yield the balance of my time to the gentleman from Missouri (Mr. Gephardt), the Democratic leader. (Mr. GEPHARDT asked and was given permission to revise and extend his remarks.)

Mr. BOUCHER. Mr. Speaker, I offer a motion to recommit.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I thank the gentleman from Michigan for yielding me the time. In its 1974 Watergate inquiry, the House Committee on the Judiciary conducted an exhaustive examination of the constitutional history of the impeachment power. Then on a broad bipartisan basis, the committee adopted a report which eloquently states the constitutional standard for use by the House of Representatives of its impeachment power. In the committee's words, only that presidential misconduct which is seriously incompatible with either the constitutional form and principles of our government or the proper performance of the constitutional duties of the office of the presidency will justify impeachment. The facts now before the House, which arise from a personal relationship and the efforts to conceal it, simply do not meet that standard. While the President's conduct was reprehensible, it did not threaten the Nation. It did not undermine the constitutional form and principles of our government. It did not disable the proper functioning of the constitutional duties of the presidential office. These facts simply do not meet the standard. To misuse of impeachment power in this case, as some are now prepared to do, will create a national horror. The divisions on this subject which now exist within our society will harden and deepen. A rift and a divide will occur. There will be a polarization. The President and the Congress will be diverted from their urgent national business while prolonged proceedings take place in the Senate. There will be a lowering of the standard for future impeachments with an inherent weakening of the presidential office. There will probably be instability in the financial markets with adverse effects for the economy. These harms are unnecessary. The President's conduct was deplorable, but it was not impeachable. The House today should censure the President for bringing dishonor on the presidential office. That path will bring closure and a restoration of national dignity.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I am pleased to rise in support of the conference report on H.R. 2281. Through this legislation, we extend new protections to copyright owners to help them guard against the theft of their works in the digital era. At the same time, we preserve the critical balance in the copyright law between the rights of copyright owners and users by also including strong fair use and other provisions for the benefits of libraries, universities, and information consumers generally. I am pleased to advise my colleagues that many of the compromises achieved in this legislation reflect the work of the Commerce Committee. I want to underscore my appreciation for the leadership of Chairman Bliley and Ranking Member Dingell in successfully crafting balanced legislation both in the Committee and as conferees. I want to highlight briefly several provisions addressing fair use and the effect of this legislation on consumer electronics devices, computers and other technologies. These provisions are fundamental to the balance that the conferees have achieved in this measure. First, the conferees included a provision which ensures that the legislation's prohibition against circumvention of copy protection technologies in digital works does not thwart the exercise of fair use and other rights by all users. This safeguard requires that the Librarian of Congress, in consultation with the Register of Copyrights and the National Telecommunications and Information Administration of the Commerce Department, conduct proceedings periodically to determine if these rights are being adversely affected by copy protection technologies in the digital age. If the Librarian of Congress determines that noninfringing uses of certain classes of copyright works are, or are likely to be, adversely affected, then the measure's prohibition against circumvention of copy protection technologies shall not apply to users with respect to those works. Second, with respect to consumer electronics devices and other equipment, the conferees included a ``no mandate'' provision which should reassure manufacturers of future digital telecommunications, consumer electronics and computing products that they have the design freedom to choose parts and components in designing and building new equipment. Read together with other provisions of the measure and other parts of the relevant legislative history, the ``no mandate'' provision confirms that Congress does not intend to require equipment manufacturers to design new digital telecommunications equipment, consumer electronics and computing products to respond to any particular copy protection technology. Third, the conferees also clarified that manufacturers, retailers and professional services can make ``playability'' adjustments to their equipment without fear of liability. Recognizing that, whether introduced unilaterally or after a multi-industry development process, a copy protection technology might cause playability problems, the conferees explicitly stated that makers or servicers of consumer electronics, telecommunications or computing products can mitigate these problems without being deemed to have violated the measure's prohibition against circumvention of a copy protection technology. Equipment manufacturers should thus be able to make product adjustments without fear of liability, and retailers and professional servicers should not feel burdened with the threat of litigation in repairing videocassette recorders and other popular products for their customers. Taken together, these provisions demonstrate that the legislation is not intended to diminish core fair use and other rights that have always been recognized in our copyright law. These provisions confirm that the measure does not limit the development and use of consumer electronics, telecommunications, and computer products used by libraries, universities, schools and consumers everyday for perfectly legitimate purposes. In short, with these and the other changes made to preserve the rights of information consumers, the conferees have produced a bill worthy of our support. I commend their efforts in achieving this careful compromise.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I want to thank the gentleman from California for his kind words and for yielding me this time. I also want to express appreciation to the gentleman from Pennsylvania (Mr. Goodling) for his very fine efforts and the efforts of his staff in bringing this measure to the floor. We very much appreciate his assistance. I want to pay a special tribute to my friend and colleague from Tennessee (Mr. Jenkins), with whom I was pleased to draft this measure, offer it to the Committee on Education and the Workforce, and with whom I am pleased to present the matter to the House today. I am pleased to rise in strong support of the passage of House Concurrent Resolution 214 which recognizes the contributions of the cities of Bristol, Virginia and Tennessee as the birthplace of country music. This measure is an effort to recognize the many contributions of the two cities of Bristol to the origin of country music. From its beginnings in the mountains of the Southern Appalachians, country music has steadily grown to become the most popular form of music in our Nation today. The two cities of Bristol served as the early foundation for that growth. Portable recording equipment developed in the late 1920s allowed talent scouts to travel the countryside to capture the performances of country musicians in their natural habitats. Bristol had long been a gathering place for musicians from the nearby mountains. In August of 1997, a talent scout named Ralph Peer and two engineers from the Victor Records Corporation came to Bristol with the intent of capturing the musical sounds of the area. The phonographic recordings that were made during those historic Bristol sessions launched the careers of the Carter family and also of Jimmie Rogers, who are widely recognized as the first commercially successful country music artists. The original members of the Carter family have been recognized as country music's first family in part because their works have had an unparalleled influence on succeeding generations of country music artists. Their vocal harmonies served as the basis for almost every vocal group that followed in the ensuing years. Jimmie Rogers has been named the Father of Country Music. The first artist to be inducted in the Country Music Hall of Fame was Jimmie Rogers. The recordings made in Bristol in August of 1927 have been called the Big Bang of Country Music by the Country Music Foundation in its publication ``Country, the Music and the Musicians.'' These recordings in Bristol transported country music from the mountains of our region into the national commercial marketplace. In recent years, the States of Virginia and Tennessee, through their General Assemblies, have both adopted resolutions declaring the two cities of Bristol to be the birthplace of country music. Based upon that historical record today, I am pleased to urge our colleagues in the House of Representatives to append that well-earned designation to these two cities. I thank my friend and colleague, the gentleman from Tennessee (Mr. Jenkins), for his co-authorship of this measure. I thank the entire delegations of Tennessee and Virginia who have co-authored this measure with us. I am very pleased to urge the passage of this resolution by the House.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I want to thank the gentleman from New York (Mr. Nadler) for yielding this time to me. It is a very generous amount of time, particularly in view of the fact that my perspective on this issue differs from his. I want to thank him for recognizing me this morning. Mr. Speaker, I am pleased to rise in support of the conference report on the bankruptcy reform measure and urge its approval by the House of Representatives. In recent years, the bankruptcy laws have been subjected to growing misuse by debtors who can repay a substantial part of what they owe but elect instead to file for the complete discharge and complete liquidation provisions of Chapter 7 of the bankruptcy laws. In the past year, more than 1.4 million bankruptcy petitions were filed, and that was a 25 percent increase over the prior year's level. That dramatic increase occurred at a time when we had the strongest national economy and the lowest unemployment that our Nation has experienced in decades. Each year, more than $40 billion in consumer debt is wiped out through bankruptcy discharges, a cost that is passed along to borrowers and passed along to the purchasers of all goods and services. That cost amounts to a hidden tax of approximately $400 per year on the typical American family. The reform legislation that we consider this morning is a positive step toward ensuring that individuals with high incomes who need bankruptcy protection but who can repay a substantial part of their debts use the debt repayment plan of Chapter 13, rather than the complete liquidation provisions of Chapter 7. That will ensure that more of the debt is paid. That will ensure that the $400 tax that is imposed on the typical family because of increased charges for credit and the increased prices for goods and services is, to some extent, reduced and lowered. By combining the best elements of the House and Senate bankruptcy reform measures, the conference agreement encourages personal responsibility in the use of credit in a manner that is fair to debtors and creditors alike and promotes the interests of all consumers. It makes a number of other useful changes. Child support and alimony payments that today have the seventh priority in the distribution of a bankrupt's estate will be moved to the very first priority. That is a very significant change. I would note that for people whose concerns have been expressed with regard to the condition of the single parent. In Chapter 13 cases, a court under this legislation can require that all child support and alimony be paid before any other obligations, and a debtor will not receive discharge of his debts in bankruptcy until child support and alimony payments have been made. The legislation also protects consumers. All credit card users will benefit from mandatory provisions requiring credit card companies to disclose on customer statements the effect that only making the minimum monthly payment will have on the length of time it will take to pay the balance that is due and also on the overall finance charges that must be paid. Credit card companies will also be prohibited from terminating a customer's account because that individual elects to pay his bills on time and, therefore, is not incurring finance charges. The measure also enhances debtor protections. The conference report addresses the unscrupulous practices of some debt relief agencies by requiring full disclosure to consumers about the bankruptcy process and about related fees. Reaffirmations by debtors of wholly unsecured debt must comply with strict new disclosure requirements that are imposed on creditors, and reaffirmations will also be subjected to review by a bankruptcy judge. I urge support for the conference agreement. Mr. Speaker, I rise in support of the conference report on the bankruptcy reform measure and urge its approval by the House. In recent years, the bankruptcy laws have been subjected to growing misuse by debtors who can repay a substantial part of what they owe, but elect to file for a complete discharge of all of the debts under Chapter 7. In the past year more than 1.4 million bankruptcy petitions were filed, an increase of more than 25% over the prior year's level. And this dramatic increase has occurred during the strongest economy, with the lowest unemployment the nation has experienced in decades. Each year, more than $40 billion in consumer debt is wiped out through bankruptcy discharges, a cost which is passed along to borrowers and to the purchasers of all goods and services. This cost amounts to a hidden tax of $400 per year on the typical American family. The reform legislation is a positive step toward ensuring that individuals with high incomes who need bankruptcy protection but who can repay a substantial portion of their debts use the debt repayment plan of Chapter 13 rather than the complete liquidation provisions of Chapter 7. By combining the best elements of the House and Senate bankruptcy reform measures, the Conference Agreement encourages personal responsibility in the use of credit in a way which is fair to debtor and creditors alike and promotes the interests of all consumers. It makes other useful changes: Child support and alimony payments will become the first priority in bankruptcy proceedings, a major change from the seventh priority in current law. In Chapter 13 cases, a court can require that all child support and alimony be paid before any other obligations. And, a debtor will not receive a discharge of debts in bankruptcy until child support and alimony payments are made current. The legislation protects consumers: All credit card users will benefit from mandatory provision requiring credit card companies to disclose on customer statements the effect of only making the minimum monthly payments on the overall finance charges paid and on the length of time required to repay the balance. Credit card companies will also be prohibited from terminating a customer's account solely because the customer has not incurred finance charges on the account. The measure enhances debtor protections: The conference report addresses unscrupulous practices of some debt relief agencies by requiring full disclosures to consumers about the bankruptcy process and related fees. Reaffirmations by debtors of wholly unsecured debt must comply with strict new disclosure requirements imposed on creditors and reaffirmations will be subject to review by a bankruptcy judge. The House passage of this legislation was supported by \3/4\ of the membership and by approximately \1/2\ of the Democrats. I encourage colleagues on both sides to approve this conference report, and to my Democratic colleagues I would point out that the conference agreement is somewhat less favorable to the credit industry and somewhat more favorable to financially hard-pressed debtors than was the House bill. Therefore, it is my hope that an even larger number of my Democratic colleagues will support the conference agreement than supported the original legislation. In summary, the conference report on H.R. 3150 protects consumers, reduces abuses of the bankruptcy system by creditors and debtors, and ensures that an effective ``fresh start'' is available to those who truly need it. Mr. Speaker, H.R. 3150 is a balanced and responsible reform of the bankruptcy law.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I offer a motion to recommit.

Mr. BOUCHER. Mr. Speaker, on that I demand the yeas and nays.

Mr. BOUCHER. Mr. Speaker, I yield the balance of my time to the gentleman from Missouri (Mr. Gephardt), the democratic leader.

Mr. BOUCHER. Mr. Speaker, I yield myself 1 minute. Mr. Speaker, the motion to recommit that I am pleased to offer this afternoon is well tailored to the challenge that we have before us. It offers a framework for a full and a fair review by the House Committee on the Judiciary and a full and a fair review by the House of Representatives. It assures that we give deference to the historical constitutional standard for impeachment, which has evolved to this House over two centuries. It assures ample time to consider carefully any of the facts that are contained in the referral sent to us by the Office of Independent Counsel, which rise to that constitutional standard. It assures that the entire matter will be resolved promptly and that the Nation is not distracted by a prolonged inquiry. Some Members, Mr. Speaker, would prefer that there be no review. Some would have us investigate, for more than a year, a wide range of matters. The resolution that we are offering through this motion to recommit steers a middle course, a careful review limited to the materials that are now before us. With the rules we offer, the House will discharge its constitutional obligations in a manner that is both thorough and expeditious. I urge the approval of this motion to recommit. Mr. Speaker, I yield 1 minute to the gentleman from Virginia (Mr. Scott).

Mr. BOUCHER. Mr. Speaker, at the conclusion of this debate, I will offer a motion to recommit the resolution offered by the gentleman from Illinois to the Committee on the Judiciary with the instruction that the Committee immediately report to the House the resolution in the form of our Democratic alternative. While we would have preferred that Democrats have a normal opportunity to present our resolution as a amendment, the procedure being used by the House today does not make a Democratic amendment in order. The motion to recommit with instructions, however, offers an opportunity for adoption by the House of our alternative. The Democratic amendment is a resolution for a full and complete review by the Judiciary Committee of the material referred to the House by the Office of the Independent Counsel. The Republican resolution also provides for that review. The difference between the Democratic and Republican alternatives is only over the scope of the review, the time that the review will take, and the requirement in our Democratic alternative that there be a recognition of the historical Constitutional standard for impeachment. The public interest requires that a fair and deliberate inquiry occur. Our resolution would assure that it does. But the public interest also requires an appropriate boundary on the scope of the inquiry. It should not become an invitation for a free ranging fishing expedition, subjecting to a formal impeachment inquiry matters that are not before the Congress today. The potential for such a venture should be strictly limited by the resolution of inquiry. Our proposal contains those appropriate limits. It would subject to the inquiry the material presented to us by the Office of the Independent Counsel which is the only material before us at the present time. The public interest also requires that the matter be brought to conclusion at the earliest possible time that is consistent with a complete and through review. The country has already undergone substantial trauma. If the Committee carries its work beyond the time reasonably needed for a complete resolution of the matter now before us the injury to the nation will only deepen. We should be thorough, but we should be prompt. Given that the facts of this matter are generally well known, and given that there are only a handful of witnesses whose testimony is relevant, all of whom have already undergone grand jury scrutiny, there is no reason to prolong the Committee's work into next year. A careful and thorough review can be accomplished between now and the end of this year. Our resolution so provides. Our resolution requires that the Committee hold hearings on the Constitutional standard for impeachment which has evolved over two centuries and which was recognized most recently by the Committee and by the House in 1974. Our substitute then directs the Committee to compare the facts stated in the referral to the Constitutional standard and determine which if any of them rise to the standard. Any of the facts stated in the referral which pass that initial test would then become the subject of a formal inquiry and investigation following which the Committee could reach its conclusion. It could recommend articles of impeachment, alternative sanctions or a no action option. Under our resolution the committee will begin its work on October 12 and conclude all proceedings, including the consideration of recommendations in December. The House could then complete its consideration of any recommendations the Committee may make by the last week in December. This approach is fair. It's in the public interest, and it is what the American public expects. It gives deference to the Constitutional standard for impeachment recognized by the House in its 1974 report. It offers ample time to consider carefully, any of the allegations which rise to the Constitutional standard. It assures that the entire matter will be resolved promptly and that the Nation is not distracted by a prolonged inquiry which is clearly not justified by the material presented in the referral. It presents a framework that will enable the Committee and the House of Representatives to discharge their Constitutional obligations in a manner which is both thorough and expeditious. I urge approval of the Democratic plan as rules of proceeding which are well tailored to the challenge before us.

Mr. BOUCHER. I am, Mr. Speaker.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I want to thank the gentleman from Michigan for yielding this time to me and commend him for the leadership that he has exerted as we have worked on this side in order to offer a fair and a balanced alternative to the resolution of inquiry. At the conclusion of this debate, I will offer a motion to recommit the resolution offered by the gentleman from Illinois to the Committee on the Judiciary with the instruction that the committee immediately report back that resolution to the House with instructions that it contain our Democratic alternative. While we would have preferred that Democrats have a normal opportunity to present our resolution as an amendment, the procedure that is being used by the House today does not make a Democratic amendment in regular course in order. The motion to recommit with instructions does, however, give us an opportunity to have the House adopt the Democratic plan. The Democratic amendment is a resolution for a full and complete review by the Committee on the Judiciary of the material that has been presented to the House by the office of Independent Counsel. The Republican resolution also provides for that full and complete review. The difference between the Democratic and the Republican approaches is only over the scope of the review, only over the time that the review will take, and only over our insistence that the Committee on the Judiciary, in conducting its process, pay deference and become aware of the historical constitutional standard for impeachment that has evolved to us over the centuries and was recognized most recently by the Committee on the Judiciary in 1974 and then recognized by the full House of Representatives. The public interest requires a fair and deliberate inquiry in this matter. Our resolution provides for that fair and deliberate inquiry. But the public interest also requires an appropriate boundary on the scope of the inquiry. It should not become an invitation for a free- ranging fishing expedition, subjecting to a formal impeachment inquiry matters that are not before the Congress today. The potential for such a venture should be strictly limited by the resolution adopted today by the House, and our Democratic proposal contains those appropriate limits. It would subject to the inquiry the material presented to us by the office of Independent Counsel, which is the only material before the House today. The public interest also requires that the matter be brought to conclusion at the earliest possible time; that is, consistent with a thorough and complete review. The country has already undergone substantial trauma. If the committee carries this work beyond the time that is reasonably needed to conduct its complete and thorough review, that injury to the Nation will only deepen. We should be thorough, but we should also be prompt. Mr. Speaker, given that the facts of this matter are generally well- known, given that there are only a handful of witnesses who have relevant information that can be addressed in this inquiry, and given the further fact that all of those witnesses have already been the subject of extensive review by the Grand Jury, and their testimony is available, this inquiry can, in fact, be prompt. The committee's work should not extend into next year. A careful and a thorough review can be accomplished between now and the end of this year, and our Democratic resolution provides that appropriate limitation on time. The resolution requires that the committee hold hearings on the constitutional standard for impeachment, which was clearly stated in the conclusion of the committee's report in the Watergate years of 1974. Our substitute then directs that the committee compare the facts that are stated in the referral of the Independent Counsel to that historical constitutional standard and, if any facts rise to the level of impeachable conduct, that material would then be subjected to the thorough inquiry and review process contained within our resolution. Under the resolution that we are putting forth, the committee will begin its work on the 12th day of October, that is next Monday, and will conclude all proceedings, including the consideration of recommendations, during the month of December. There would then be ample time for the House of Representatives to consider those recommendations and conclude its work by the end of this year. The procedure we are recommending is fair, it is thorough, it is prompt. It is a recommendation for an inquiry. It would assure an appropriate scope. It would give deference to the historical constitutional standard for impeachment, and it would assure that this matter is put behind us so the Nation can proceed with its very important business by the end of this year.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I want to express appreciation to the gentleman from Massachusetts (Mr. Markey) for his leadership on this measure and for yielding this time to me. I also want to thank my friend, the gentleman from Louisiana (Mr. Tauzin), the chairman of our Subcommittee on Telecommunications, Trade, and Consumer Protection, for his very fine work on this measure. He has contributed substantially to resolving a major problem, and I want to thank him very much for his efforts. Mr. Speaker, I rise in strong support of this legislation which will remove a major hindrance that exists today to the arrival of viable competition in the multichannel video marketplace. As Members of Congress, we are hearing complaints every day from our constituents about cable television rates, the high level of those rates at the present time, and the fact that cable television rates are going up faster than the price of most of the products and services in the American economy. In fact, in many communities, cable TV rates are even increasing faster than the price of health care services. Many of us believe that while some measure of rate regulation may be necessary in the interim period in order to address those problems of rates, over the long-term the right answer, and the best approach to addressing the concerns of ever-increasing cable television rates, is to bring competition into that market and make sure that the consumers of multichannel video services have a choice and have viable alternatives. Many of us also see the satellite industry as being the most viable immediate competitor for the cable industry. Unfortunately, the regulation that was issued last year by the Copyright Office in the Library of Congress places a major barrier in the way of the arrival of that competition because it imposes copyright fees for the delivery of material over satellites that are many times greater than the fees imposed upon cable systems for the delivery of exactly the same programming. In fact, with regard to network signals, the fees will be nine times greater when imposed upon satellite deliverers of this programming than upon cable systems, and with regard to superstation signals, the difference is three times, three times more for the satellite carrier than for the cable company. This discrepancy also disproportionately affects the rural consumers of satellite services because most of the satellite dishes are found in rural America today. And as a representative of a rural district, that fact has particular resonance with me. The amount of this charge per year for every consumer of satellite services is about $20. That is the amount of the increase imposed by the Copyright Office, and so it is not an inconsiderable amount of money. The legislation before us would impose a freeze on the imposition of these disproportionate and unwise fees until the end of 1999, and that gives us an opportunity here in the Congress to establish a mechanism that will assure that the same fee is imposed upon satellite systems and cable systems and other providers of multichannel video services so that we have fairness, we have balance, and through the copyright fees we do not favor one provider of these services over others. It is a very wise approach. I commend the gentleman from Louisiana and the gentleman from Massachusetts for bringing the measure forward, and I urge its approval by the House.

Mr. BOUCHER

Mr. BOUCHER. Madam Speaker, I thank the gentleman from Massachusetts (Mr. Frank) for yielding this time to me, and I am pleased to rise today in support of the passage of H.R. 2281, which will extend new protections against the theft of their works to copyright owners. Madam Speaker, new protections are needed due to the ease with which flawless copies of copyrighted materials can both be made and transmitted in the digital network environment. Essential, however, to the creation of new guarantees for copyright owners is the retention of the traditional rights of the users of intellectual property. A balance has always existed in our law between these conflicting interests, and the major challenge in the writing of this legislation is to assure that no fundamental altering of that delicate balance takes place. Another challenge is to ensure that in the effort to eliminate devices that are designed and produced to make illegal copies of copyrighted materials, that legitimate consumer electronics products are not also placed in a category of legal uncertainty. Today I want to offer congratulations primarily to the Members of the House Committee on Commerce who have devoted long hours in the effort to assure that these challenges are met. Specifically, the Committee on Commerce has added provisions that protect personal privacy by clearly permitting personal computer owners to disable cookies that are placed on their disks by others; that allow the encryption research that will lead to a new generation of trusted and secure systems; that give equipment manufacturers the certainty that their consumer electronics products need not affirmatively accommodate all technological protection measures; and that creative procedure for assuring the continuation of the fair use rights of the American public, a procedure that will prevent material that is generally available today under fair use being locked away in a pay-per-use regime in future years. Report language also specifies that the technological protection measure circumvention restrictions will not apply when manufacturers, retailers and technicians need to make adjustments to devices to ensure that their performance is not degraded as a consequence of the installation of a technological protection measure. These changes, taken together, significantly improve the original legislation. The gentleman from Virginia (Chairman Bliley), the gentleman from Michigan (Mr. Dingell), the gentleman from Wisconsin (Mr. Klug), the gentleman from Florida (Mr. Stearns) and the gentleman from Massachusetts (Mr. Markey), among others, deserve thanks for their successful efforts to create new copyright protections, while ensuring that traditional user rights are not undermined. The Committee on Commerce has, in the manner for which it is known, mastered the intricate details of this complex subject and has produced a balanced result. I want to offer my congratulations to all who have been involved in that outstanding effort. It is my pleasure to urge passage of H.R. 2281. Madam Speaker, I will insert in the record correspondence from the subcommittee chairman, the gentleman from North Carolina (Mr. Coble), to the gentleman from California (Mr. Campbell) and myself, which further defines the terminology that is used in the statute. House of Representatives, Committee on the Judiciary, Washington, DC, June 16, 1998. Hon. Tom Campbell, U.S. Representative for the 15th District of California, Washington, DC. Hon. Rick Boucher, U.S. Representative for the 9th District of Virginia, Washington, DC. Dear Tom and Rick: Thank you for visiting with me in my office recently regarding H.R. 2281, the ``WIPO Copyright Treaties Implementation Act.'' I appreciate the concerns you expressed with respect to H.R. 2281 as it was reported from the House Committee on the Judiciary. I expressed to you that I would consider your thoughts and respond to you in detail, and am pleased to do so in this letter. I believe that many of your concerns, which are enumerated in your substitute bill, H.R. 3048, have been addressed already in a reasonable manner in amendments to the bill adopted by the Subcommittee on Courts and Intellectual Property and the Committee on the Judiciary in the House and by the Committee on the Judiciary and on the floor in the Senate (regarding the Senate companion bill, S. 2037). Others have been addressed in legislative history in House Report 105-551 (Part I) which accompanies the bill, as well as in Senate Report 105-190, which accompanies the Senate companion bill. Still others may be addressed as the House Committee on Commerce exercises its sequential jurisdiction over limited portions of the bill and as I work with interested members on developing a manager's amendment to be considered by the whole House. I anticipate including many of the amendments made by the Senate in the manager's amendment, along with other provisions. I also anticipate that a conference will be necessary to reconcile the House and Senate versions of the bills. While I am unable to support the specific provisions of H.R. 3048, for reasons I will explain in this letter, I am willing to work with you in the coming weeks to address additional concerns regarding the impact of this legislation on the application of the ``fair use'' doctrine in the digital environment and on the consumer electronics industry. I wish to stress, however, that I believe the bill, as amended by the House and Senate thus far, and explained by both the House and the Senate Judiciary Committee reports, already addresses these issues in several constructive ways. I believe it is important, in order to recognize properly the efforts undertaken by the Congress and the Administration to address the concerns of the consumer electronics and fair use communities, to review the history of H.R. 2281 and to evaluate all of the provisions that have been either added to or deleted from the bill since its development leading to introduction in this Congress. As I am sure you will appreciate, I am sensitive to your concerns and have worked diligently with members and all parties involved to create a balanced and fair proposal that will result in the enactment of legislation this Congress. In February, 1993, the Administration formed the Information Infrastructure Task Force to implement Administration policies regarding the emergence of the Internet and other digital technologies. This task force formed a Working Group on Intellectual Property Rights to investigate and report on the effect of this new technology on copyright and other rights and to recommend any changes in law or policy. The working group held a public hearing in November, 1993, at which 30 witnesses testified. These witnesses represented the views of copyright owners, libraries and archives, educators, and other interested parties. The working group also solicited written comments and received over 70 statements during a public comment period. Based on oral and written testimony, the working group released a ``Green Paper'' on July 7, 1994. After releasing the Green Paper, the working group again heard testimony from the public through four days of hearings held around the country. More than 1,500 pages of written testimony were filed during a four-month comment period by more than 150 individuals and organizations. In March, 1995, then-Chairman Carlos Moorhead solicited informal comments from parties who had submitted testimony regarding the Green Paper, including library and university groups, and computer and electronics group, in order to work effectively with the Administration on jointly developing any proposed updates to U.S. copyright law that might be necessary in light of emerging technologies. In summer, 1995, the working group released a ``White Paper'' based on the oral and written testimony it has received after releasing the Green Paper. The White Paper contained legislative recommendations which were developed from public comment in conjunction with consultations between the House and Senate Judiciary Committees, the Copyright Office and the Administration. In September, 1995, Chairman Moorhead in the House and Chairman Hatch in the Senate introduced legislation which embodied the recommendations contained in the White Paper and held a joint hearing on November 15, 1995. Testimony was received from the Administration, the World Intellectual Property Organization and the Copyright Office. The House Subcommittee on Courts and Intellectual Property held two days of further hearings in February, 1996. Testimony was received from copyright owners, libraries and archives, educators and other interested parties. in May, 1996, the Senate Judiciary Committee held a further hearing. Testimony was received from copyright owners, libraries and other interested parties. These hearings were supplemented with negotiations in both bodies led by Representative Goodlatte (as authorized by Chairman Moorhead) in the House and by Chairman Hatch in the Senate. Further negotiations were held by the Administration in late summer and fall of 1996. During consideration of the ``NII Copyright Protection Act of 1995,'' Chairman Moorhead requested that Mr. Boucher and Mr. Berman of California lead negotiations between interested parties regarding the issue of circumvention. While these negotiations were helpful in streamlining and clarifying the issues to be discussed, they ultimately did not result in an agreement. It is important to note that shortly after its establishment, the Administration task force's working group convened, as part of its consideration, a Conference on Fair Use (CONFU) to explore the effect of digital technologies on the doctrine of fair use, and to develop guidelines for uses of works by libraries and educators. Because of the complexities involved in developing broad-based policies for the adaptation of the fair use doctrine to the digital environment, and due to much disagreement among the participants (including within the library and educational communities), CONFU did not issue its full report until nearly two years after it was convened. An Interim Report was released by CONFU in September 1997 on the first phase of its work. No consensus was reached on how to apply the fair use doctrine to the digital age. In fact, the CONFU working group on interlibrary loan and document delivery concluded in a report to its Chair that it is ``premature to draft guidelines for digital transmission of digital documents.'' The work of CONFU continues today and a final report should be released soon with no agreed conclusions. As you can see, developing sweeping legislation, rather than relying on court-based ``case or controversy'' applications of the doctrine, is exceedingly difficult to do. Since before the debate began with the establishment of a task force in the United States in 1993, the international community had also been considering what updates should be made to the Berne Convention on Artistic and Literary Works in order to provide adequate and balanced protection to copyrighted works in the digital age. This culminated in a Diplomatic Conference hosted by the World Intellectual Property Organization at which over 150 countries agreed on changes needed to accomplish this goal. This goal was not reached easily, however, and many of the issues being debated by the Administration and the Congress in the United States concerning fair use and circumvention were aired at the Diplomatic Conference, with significant changes made to accommodate fair use concerns and the effect on the consumer electronic industries. Representatives of both groups participated in the Conference and aggressively sought to maintain proper limitations on copyright. They succeeded. For example, language was added to ensure that exceptions such as fair use could be extended into the digital environment. The treaty also originally contained very specific language regarding obligations to outlaw circumvention. It was changed to state that all member countries ``shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty.'' This left to each country the development of domestic legislation to accomplish this goal. After the United States signed the WIPO Treaties, the Administration again began negotiations led by the Department of Commerce and the Patent and Trademark Office, in consultiation with the Copyright Office and the Congress, to develop domestic implementing legislation for the treaties. It built upon the efforts already accomplished by the release of the Green Paper and the White Paper and all of the testimony and comments heard as part of that process, the House and Senate bills introduced in the 104th Congress and all of the hearing testimony and negotiations associated with them, and the negotiations held by the Administration leading up to and during the Diplomatic Conference. Again, comments were solicited from fair use and consumer electronics groups. In the summer of 1997, the Administration submitted to the Congress draft legislation to implement the treaties. In July, 1997, Chairman Hatch and I introduced the current pending legislation in each house. Importantly, the legislation was tailored to match the treaty language by establishing legal protection and remedies not against any technological measures whatsoever, but only ``against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights.'' The fair use and consumer electronics groups succeeded, just as they had at the Diplomatic Conference, in assuring in the introduced version of the bills the maintenance of proper limitations on copyright. The Administration had considered originally banning both the manufacture and use of devices which circumvent effective technological measures and had no specific provision on fair use, since Section 107 of the Copyright Act would, of course, continue to exist after enactment of the legislation. The word ``use'' was eliminated in the device provision and a specific provision relating to the adoption of the fair use doctrine in the digital environment was added. As it was introduced, H.R. 2281 contained two important safeguards for fair use. First, the bill dealt separately with technological measures that prevent access and technological measures that prevent copying. As to the latter, the bill contained no prohibition on the act of circumbention itself, leaving users free to circumvent such measures in order to make fair use copies. Second, the savings clause in subsection 1201(d) ensures that defenses to copyright protection, including fair use, are unaffected by the prohibitions on circumvention. For example, circumvention of an effective technological measure that controls access to a work does not preclude, or affect in any way, a defense of fair use for copying the work. Moreover, the bill as introduced did not expand exclusive rights or diminish exceptions and limitations on exclusive rights. Again, a series of legislative hearings were held by the House and Senate Judiciary Committees at which testimony was again heard from copyright owners, libraries and archives, educators, consumer electronics groups and other interested parties. In February, 1998, almost five years to the date of the establishment of the Administration's working group, taking into account all of the concessions and negotiations leading up to it, the first markup was finally held in Congress by the Subcommittee on Courts and Intellectual Property on this important legislation. As is evident by the timetable involved in the development of this legislation, and considering the number of hearings, negotiations and conferences dedicated to its contents, this bill certainly has not been placed on any ``fast-track.'' In the course of Subcommittee and Committee consideration of the bill in the House, the gentleman from Massachusetts, the Ranking Democratic member of the Subcommittee, Mr. Frank, and I, proposed a number of improvements to the bill, which were adopted by the Committee, that benefit libraries and nonprofit educational institutions. We introduced a special ``shopping privilege'' exemption that permits nonprofit libraries and archives to circumvent effective technological measures in order to decide whether they wish to acquire lawfully a copy of the work. We added a provision that requires a court to remit monetary damages for innocent violations of sections 1201 or 1202. And we eliminated any possibility that nonprofit libraries and archives or educational institutions can be held criminally liable for any violation of sections 1201 or 1202, even when such violations are willful. These changes add protection to language already included in the bill which safeguard manufacturers of legitimate consumer electronic devices. Unlike the ``NII Copyright Protection Act of 1995,'' which would have prohibited devices ``the primary purpose or effect of which is to circumvent,'' H.R. 2281 sets out three narrow bases for prohibiting devices. A device is prohibited under section 1201 only if it is primarily designed or produced to circumvent, has limited commercially significant use other than to circumvent, or is marketed specifically for use in circumventing. This formulation means that under H.R. 2281, it is not enough for the primary effect of the device to be circumvention. It therefore excludes legitimate multi-purpose devices from the prohibition of section 1201. Devices such as VCRs, and personal computers do not fall within any of these three categories (unless they are, in reality, black boxes masquerading as VCRs or PCs). In addition, H.R. 2281 as introduced does not require any manufacturer of a consumer electronic device to accommodate existing or future technological protection measures. ``Circumvention,'' as defined in the bill, requires an affirmative step of ``avoiding, bypassing, removing, deactivating, or otherwise impairing a technological protection measure.'' Language added in the Senate, referred to below, clarified this even further. In addition to all of the foregoing, there are a number of amendments that were made in the Senate bill that will be included in the manager's amendment to H.R. 2281. These include: An expansion of the exemptions of nonprofit libraries and archives in 17 U.S.C. Sec. 108 to cover the making of digital copies without authorization, for purposes of preservation, security or replacement of damaged, lost or stolen copies; An expansion of section 108 to cover the making of digital copies without authorization in order to replace copies in the collection that are in an obsolete format; A provision directing the Register of Copyrights to make recommendations as to any statutory changes needed to apply the limitations on liability of online service providers to nonprofit educational institutions that act in the capacity of service providers; A provision directing the Register of Copyrights to consult with nonprofit libraries and nonprofit educational institutions and submit recommendations on how to promote distance education through digital technologies, including any appropriate statutory changes; A savings provision stating that nothing in section 1201 enlarges or diminishes vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component or part thereof; A provision that states explicitly that nothing in section 1201 requires accommodation of present or future technological protection measures; A provision to ensure that the prohibition on circumvention does not limit the ability to decompile computer programs to the extent permitted currently under the doctrine of fair use; and A provision ensuring that technology will be available to enable parents to prevent children's access to indecent material on the Internet. I believe that these are constructive provisions that precisely and carefully address specific concerns you have raised in H.R. 3048. In order to assure that fair use applies in the digital environment, in addition to the above changes, I have also agreed to include in the manager's amendment an amendment to Section 107 of the Copyright Act to make it continue to be technology-neutral with respect to means of exploitation. It may be helpful, in addition to discussing what is contained in H.R. 2281 and the Senate companion, and what will be included in the manager's amendment, to raise directly with you some of the identifiable problems I see associated with H.R. 3048 as introduced. In my opinion, this extension of the first sale doctrine is antithetical to the policies the doctrine was intended to further. The alienability of tangible property is not at issue, since no tangible property changes hands in a transmission. Further, it does not address specifically the ability to control the after-market for resales of the same copy of a work, since in this case distribution of a work by digital transmission necessarily requires a reproduction--it is not the same copy. The bill's answer to this quandary-- that the original copy must be destroyed--is unenforceable and certainly not a substitute for disposition of a tangible copy. Destruction involves an affirmative act, generally in the privacy of a home, that is difficult to police and would involve significant invasions of privacy if it were policed effectively. Further, regardless of whether the original copy is destroyed, the new copy would be free of contractual or other controls placed on the original copy by the copyright owner. It is also likely that this provision would have a much greater impact on an owner's primary market for new copies of a work than the current first sale doctrine has on the primary market for physical copies. Unlike used books, digital information is not subject to wear and tear. The ``used'' copy is just as desirable as the new one because they are indistinguishable. For this reason, Congress has curtailed the first sale doctrine as it applies to the rental of sound recordings and software in the past, to prevent posing so great a burden on a copyright owner so as to undermine the incentive to create works which is the driving force behind the Copyright Act. H.R. 3048 would also broaden Section 110(2) of the Copyright Act so that the performance, display, or distribution of any work (rather than just the performance of a nondramatic literary or musical work and the display of any work) through digital transmission (rather than just through audio broadcasts) would be allowed without the permission of the copyright holder, as long as it is received by students, or by government employees as part of their duties. This broad expansion of the distance learning provisions currently codified in the Copyright Act would permit the transmission of a wide variety of Internet-based or other remote-access digital transmission formats for distance education and raises serious questions about safeguards to prevent such transmissions from unauthorized access. In other words, it may facilitate piracy. Both CONFU and the Senate have discussed the intricacies involved in safeguarding transmissions used for distance learning purposes and have agreed that it is premature to enact specific legislation at this time. As discussed earlier, the Senate has included a provision in its companion bill, which I plan to include in the House manager's amendment, that will provide for a study with legislative recommendations on this issue, within a six-month time frame. This study will be better able to address the complex problems I have identified. Section 7 of H.R. 3048 would amend Section 301(a) of the Copyright Act to preempt enforcement of certain license terms under state law. Specifically, it would preempt any state statute or common law that would enforce a ``non-negotiable license term'' governing a ``work distributed to the public'' if such term limited the copying of material that is not subject to copyright protection or if it restricted the limitations to copyright contained in the Copyright Act. In effect, it would prohibit standard form agreements, used in the context of copies distributed to the public, that purport to govern use of noncopyrightable subject matter or limit certain exceptions and limitations, such as fair use. The use of standard form licensing agreements has become prevalent in the software and information industries, as owners seek to protect their investment in these products against the risk of unauthorized copying. Section 7 would result in destroying the ability of the producer of a work to create specific licenses tailored to the circumstances of the marketplace, or, in the case of factual databases and other valuable but noncopyrightable works, destroy the most significant form of protection currently available. This could result, for example, in the loss of crucial revenues to stock and commodity exchanges who rely on such contracts to disseminate information. Attempts to introduce language similar to Section 7 of H.R. 3048 into Article 2B of the Uniform Commercial Code (UCC) have been rejected repeatedly by the UCC Article 2B Drafting Committee on several occasions. The National Conference of Commissioners on Uniform State Laws also rejected a proposal similar to the one you propose as has the American Law Institute. I agree with these bodies that restricting the freedom to contract in the manner proposed in H.R. 3048 would have a negative effect on the availability of information to consumers. H.R. 3048 also proposes several changes to Section 108 of the Copyright Act regarding archiving and library activities. As you are aware, library groups and copyright owners have come to an agreement regarding changes in this section to update the Act for the digital environment and those changes were incorporated by the Senate in the companion bill. I will include those same provisions in the manager's amendment in the House. Finally, the new Section 1201 contained in H.R. 3048 would not prohibit manufacturing or trafficking in devices purposely created to gain unauthorized access to copyrighted works, and insofar as it prohibits conduct, would permit circumvention in the fist instance for purposes of fair use. In other words, H.R. 3048, as I discussed earlier, would grant to users a right never before allowed--free access to copyrighted works in order to make a fair use. I believe that is unwise policy and tilts the balance away from the protection of works in a free market economy toward the free provision of works to anyone claiming to make a fair use. This would, I believe, ultimately lead to much more litigation against libraries and others who lawfully engage in fair use and ultimately would diminish the number of works made available over new media. While it would be impossible to communicate to you all of the problems contained in the exact language of H.R. 3048, I wanted to, in truncated form, reveal my serious concerns with the bill. In its current form, for the above reasons and others, I would oppose it as a substitute to H.R. 2281, as amended. I remain dedicated, however, to working with you, as I have in the past, to address your concerns in a reasonable manner that will result successfully in changes to our nation's copyright law that will benefit both owners and users of works. I truly believe that we are at the beginning of a long process of addressing adaptation to the digital environment. It is not possible at this point to enact legislation that will contemplate all uses of a work and, as CONFU members aptly point out, many will have to be addressed as we move forward. I am committed, however, to preserving fair use in the digital age and thank you for your valuable and continuing insight and interest. Sincerely, Howard Coble, Chairman, Subcommittee on Courts and Intellectual Property.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I thank the gentleman from California for yielding time to me. Mr. Speaker, I rise today in support of the President's decision to extend the Jackson-Vanik waiver for Vietnam, and in strong opposition to the resolution of disapproval. The Jackson-Vanik waiver process is designed to promote immigration from countries that do not have market economies. In the case of Vietnam, the waiver is clearly working as intended. Since the waiver was granted, Vietnam has made steady progress under both the ROVR and the Orderly Departure programs. If the waiver is rescinded through passage of this resolution of disapproval, that progress, which depends entirely on the cooperation of the Vietnamese government, will almost certainly be reversed. I urge the defeat of this resolution, a step that will encourage greater cooperation by Vietnam in resolving our ongoing discussions on other issues of concern, including human rights and trade. By the defeat of this resolution, we will also give a vote of confidence to the outstanding work of our ambassador in Vietnam and his very fine staff. I am pleased to urge defeat of this resolution.

Mr. BOUCHER

Mr. BOUCHER. Mr. Chairman, I offer an amendment.

Mr. BOUCHER. Mr. Chairman, I yield the balance of my time to the gentleman from Virginia (Mr. Moran).

Mr. BOUCHER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this amendment relates to the priority of child support and alimony recipients in association with bankruptcy proceedings. During consideration of the bill in the House Judiciary Committee, provisions were adopted which not only assured no disadvantage from this reform for the recipient of alimony or the recipient of child support payments, but which in very significant respects improved that person's ability to receive child support and alimony payments in comparison to current law. For example, the bill provides that unlike current law, Chapter 13 plans cannot be confirmed unless all child support payments due since the bankruptcy filing have been paid. The Chapter 13 plan cannot be discharged until all arrearages that were due prior to the filing have been paid as well. These are very significant improvements with regard to current law for the condition of the child support and alimony recipient. Another example: Under current law child support and alimony wage orders which require that an employer withhold from an employee's salary amounts that are due under child support or alimony are stayed when a bankruptcy petition is filed under any of the various chapters. The bill creates an exemption from this stay for wage orders and assures that payment of child support or alimony under them will continue. A third example: Under current law the property which is exempt under State law which is owned by a spouse who owes child support or alimony may not be subjected to the other spouse's child support or alimony claim after the spouse who owns the property has been discharged in bankruptcy. The bill improves upon current law by subjecting that exempt property to the child support or alimony claim. A fourth example: Under current law a debt one spouse owes to another that arises from something other than child support or alimony and is incorporated in a separation agreement or divorce decree is dischargeable in bankruptcy and may not be enforced against property that is exempt under State law. The bill says these debts owed to the spouse may never be discharged and may be enforced against exempt property. In each of these four instances, the situation of the recipient of child support or alimony is improved with regard to current law. The amendment that I am pleased to be offering now with the gentleman from Pennsylvania (Mr. Gekas) makes four additional improvements in current law from the standpoint of the child support or alimony recipient. First, we clearly give the child support or alimony recipient top priority to receive payment during the pendency of the bankruptcy proceeding. Today, she is seventh behind farmers who have claims against grain elevators, fishermen who have claims against wholesalers, and others. We, with this amendment, clearly make her the first priority. The second change we make will require that child support and alimony be first in line for payment in Chapter 13 plans. That also is an improvement with respect to current law. Third, we help the single parent who files for bankruptcy by expanding the definition of ``household goods'' to include items that are needed in child rearing. Unlike under current law, with this amendment she will be able to keep those items. We also provide that nonsecured debt which is acquired to pay nondischargeable debt, such as taxes, is nondischargeable against single parents and debtors who owe child support or alimony only if the debt was acquired intentionally to pay nondischargeable debt. In each of these four areas we are making improvements with regard to current law, better assuring the priority of the child support or alimony recipient. And because of the changes made in the committee, the various organizations around the country numbering several that are responsible for aiding child support and alimony recipients and enforcing those obligations have endorsed this bill, including the Child Support and Family Council of California, the City of New York Law Department, and others. Mr. Chairman, they understand that the changes that are made in the committee, as amplified by these changes on the floor, will actually improve the circumstance of the child support or alimony recipient as compared to current law. Mr. Chairman, I urge the adoption of this amendment. Mr. Chairman, I reserve the balance of my time.

Mr. BOUCHER. Mr. Chairman, I want to commend the gentleman from Pennsylvania (Mr. Gekas) for bringing H.R. 3150 to the floor today. It incorporates the core provisions of H.R. 2500 which the gentleman from Florida (Mr. McCollum) and I introduced last year. That measure was cosponsored by 185 Members of the House, including 40 Members on this side of the aisle, the Democratic side. These core reform measures are a part of H.R. 3150, and they truly have bipartisan support. A central tenet of the reform is the needs-based test for chapter 7 that was just described in the statement by the gentleman from Florida (Mr. McCollum). That is the complete liquidation provision under the bankruptcy law. Under that approach bankruptcy filers who could pay a significant amount of their debts would no longer be able to get complete liquidation. If they wanted bankruptcy protection, they would be required to use chapter 13 and then make whatever payments they could afford under a court supervised repayment plan. And the needs- based reform is essential to this measure that we have before us and to achieving genuine bankruptcy reform. During the 12-month period that ended on March 31, there were 1.37 million personal bankruptcy petitions filed across the country, and that was an increase of almost 25 percent over the previous year. That increase in personal bankruptcy filings occurred during the best economy that we have had in this country in decades, and so we would have expected exactly the opposite result, fewer bankruptcy filings rather than more. And yet in that 1 year period we had a 25 percent increase. The dramatic increase is caused, I think, by several factors. First of all, an attitudinal change among many Americans who no longer view bankruptcy as a last resort but view it as a first opportunity and treat it today as a financial planning tool and today engage in bankruptcies of mere convenience. The bankruptcy system was never intended to function that way. The bill before the House would return chapter 7 to its intended use by making it available for those who need it and requiring that those who can pay their debts, we pay a substantial portion of those by filing under chapter 13. Mr. Chairman, that change will benefit all consumers of goods and services and all responsible borrowers. Today about $44 billion in consumer debt is wiped out each year through bankruptcy filings. That wipeout of $44 billion in debt carries a hidden tax of about $400 on the typical American family. That reflects the higher prices that are charged for goods and services by merchants whose debt is wiped out in bankruptcy and reflects the higher credit cost, interest charges, that are imposed by lenders, many of whose debts are wiped out in bankruptcy as well. The enactment of H.R. 3150 would significantly lessen that hidden charge, and it is my privilege to appear today in support of this measure, and I strongly encourage its passage by the House.

Mr. BOUCHER

Mr. BOUCHER. Mr. Chairman, I thank the gentleman from Pennsylvania for yielding me the time. I rise in opposition to the Nadler substitute and would offer some remarks in further elaboration of the priority that we have now accorded to the child support and alimony recipient. These remarks are offered in response to the suggestion, made by some who are arguing in support of this substitute, that child support and alimony does not receive proper priority and that what priority it has perhaps could be defeated in a practical way by nonsecured creditors who have claims that survive in the post-discharge environment. I disagree with those suggestions and would explain this disagreement in these terms. As a legal matter, I think, as a consequence of amendments adopted in the committee and the Boucher-Gekas amendment adopted earlier on the floor today, we have now done everything that possibly can be done to make sure that the child support recipient, the alimony recipient does in fact have complete priority over nonsecured debt and in fact has first priority in the range of priorities in bankruptcy and in the post-bankruptcy environment. The only argument that I am now hearing is that as a practical matter, the recipient of alimony, the recipient of child support may not have the practical ability to enforce that priority that is possessed perhaps by the credit card company or some other lender who has a claim that survives in bankruptcy. I would respond to that by saying that Congress has created and required agencies that enabled the recipient of child support, the recipient of alimony to enforce their claims very effectively. All that has to be done is for a letter to be sent from one of these agencies at the State level to the employer of a person who owes child support or alimony and then that child support or alimony is automatically withheld from the salary of the person who has that obligation. That money is then automatically turned over to the recipient of the child support or alimony. That is a very effective way for the person who has a claim for child support or alimony to have that claim pursued successfully. The State operates in support of that claimant. The question then arises with regard to what about the person who owes child support or alimony and is self-employed. Obviously there is no instrumentality to withhold salary in that case, and the answer is that by encouraging the greater use of Chapter 13, which is the foundation of the bill and the core principle of the bill itself, we will encourage a greater respect for the priority of the child support or alimony recipient. Because in Chapter 13 proceedings, it is very easy, indeed, to enforce that first priority that the child support or alimony recipient will have. So in every instance, we have done everything that can be done to protect that priority, and I would respectfully urge that this amendment not be agreed to.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I rise today to clarify, for the record, a technical correction within H.R. 3978. I am the primary sponsor of the Daniel Boone Heritage Trail project that was included in the recently passed transportation reauthorization measure H.R. 2400, and is listed as project number 746 in the Conference Report on H.R. 2400, the Transportation Equity Act for the 21st Century Act. The Daniel Boone Heritage Trail is of tremendous historical importance to our Nation. Early in our Nation's history, the trail served as the major artery of passage for settlers crossing the Appalachian Mountains on their way westward. Over the last two hundred years, the covered wagon has been replaced by more modern forms of transportation and portions of the original trail eventually fell into disuse and were reclaimed by nature. However, a determined group of local citizens in Southwest Virginia, Eastern Kentucky, and Eastern Tennessee have joined together recently to locate and restore the trail. I have been supportive of these efforts and included within the transportation reauthorization measure funding to help purchase a parcel of land containing a segment of the trail. In the original BESTEA measure, and in the subsequent conference report passed by the House on May 22, 1998, the project description for the Daniel Boone Heritage Trail describes the land to be acquired as being within the Jefferson National Forest. However, the acquiring group may desire to purchase privately owned land instead. It was my intent that the technical corrections measure, H.R. 3978, strike the reference to the Jefferson National Forest within the Daniel Boone Heritage Trail project description, creating the flexibility for the purchase of either publicly owned or privately owned land. Unfortunately, although non-controversial, language to strike the reference to the Jefferson National Forest from the project description was not included in H.R. 3978. I rise today to state for the record the project's original intent.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I rise today with my distinguished colleague the gentleman from California, Mr. Campbell, to introduce the Digital Era Copyright Enhancement Act. We believe this legislation best advances the interests of both creators and users of copyrighted works in the digital era by modernizing the Copyright Act in a way that will preserve the fundamental balance built into the act by our predecessors throughout the analog era. We offer this measure as an appropriate starting point for congressional discussion of a range of copyright changes which the advent of digital technology will require in the belief that the legislation will serve as a solid foundation for the debate on these matters next year. We look forward to participating with the administration, other Members of Congress and interested external parties as next year's discussions commence. At the request of the administration, legislation was introduced earlier this year to implement two treaties negotiated by more than 100 nations under the auspices of the World Intellectual Property Organization [WIPO]. The matters raised by introduction of the administration's WIPO implementing legislation certainly are important, but these issues should not be addressed in isolation. I believe that we should address other compelling matters as part of a comprehensive measure revising the Copyright Act for the digital era. Moreover, I have serious concerns regarding the approach taken in the administration's legislation in addressing so-called circumvention devices. As more fully explained in the section-by-section analysis that accompanies this statement, our comprehensive legislation addresses matters of concern not only to copyright proprietors, but also to consumers, educators, librarians, archivists, device manufacturers, and other groups concerned about maintaining a proper balance in the Copyright Act. For the benefit of my colleagues, I thought it would be helpful to describe the provisions of our legislation, focusing in particular on proposed section 1201. Section 1201. Because I have serious reservations about the implications for digital technologies of the administration's device- oriented approach to section 1201, I have crafted an alternative that is more properly and closely tailored to our WIPO treaty obligations. Last December, when the U.S. Government and the representatives of more than 100 other governments met in Geneva to negotiate the text of the two WIPO treaties, they initially considered a draft text prepared by the chairman of the drafting committee, Mr. Liedes of Finland. That provision would have essentially outlawed the manufacturing of any device the primary purpose or effect of which is to avoid any anticopying technology. Perhaps not surprisingly, opposition to this device-oriented approach was expressed by numerous countries based upon a concern that such a provision could sweep within its reach legitimate and useful technology and inhibit the willingness of manufacturers to bring new products to market. As a result of that strong opposition, the device oriented this approach was dropped. Instead, the delegates adopted an alternative formulation that closely followed language I had proposed to the administration prior to the diplomatic conference. And yet, the device-oriented approach having been rejected by the delegates in Geneva, the administration nonetheless has proposed as the core of its legislation implementing the WIPO treaties a device- oriented provision. During the hearings held this fall before the Judiciary Committee's Courts and Intellectual Property Subcommittee, the Commissioner of Patents and Trademarks confirmed what many private-sector witnesses argued in their testimony, namely that the adoption of legislation that essentially would punish the manufacturers of devices, such as general purpose computers and recorders, is not necessary for the implementation of the WIPO treaties. Commissioner Lehman correctly stated that the United States could take an entirely different and I think more positive approach by adopting legislation that does not punish the manufacturer of devices but instead punishes circumvention conduct tied to the act of infringement. The subcommittee also heard compelling testimony that the approach of the administration's bill would stifle the introduction of new technology and would effectively overturn the long-settled law of the United States as announced by the Supreme Court in 1984 in its Betamax decision, Sony Corp. of America versus Universal City Studios, Inc. In that case, the Court held that a manufacturer could not be held liable for contributory copyright infringement for manufacturing a device that had a substantial non-infringing use. Even though there may be infringing uses for the device, the presence of a single substantial non-infringing use renders the manufacturer unanswerable under the copyright law. That case is the state of our law today with respect to devices which have both infringing and non-infringing uses. It is that settled law which the administration's proposed treaty implementing legislation would effectively overturn. If that measure were to become law, equipment manufacturers would be liable when their devices have legitimate, non-infringing uses. The consequences, I fear, will be a reluctance to bring pioneering new technology to market or even to continue the manufacturing of existing technology that has potential infringing uses. Mr. Speaker, what is needed is a more thoughtful approach, one clearly contemplated by the WIPO convention that rejected the device- oriented approach, one consistent with well-settled American law, and one that will not stifle the development of new technology. We have proposed that alternative. Section 1201 of our legislation would create liability for a person who, for purposes of facilitating or engaging in an act of infringement, knowingly removes, deactivates, or otherwise circumvents the application or operation of an effective technological measure used by a copyright owner to preclude or limit reproduction of a work in a digital format. Our legislation appropriately puts the focus on conduct, not on devices. Let me now briefly describe the other elements of our legislation. Section 1202. We have taken as our starting point the administration's proposed section 1202, but have revised it in part to ensure protection of the privacy interests of users of new technology. Our legislation would create liability for a person who knowingly provides false copyright management information or removes or alters copyright management information without the authority of the copyright owner, and with the intent to mislead or induce or facilitate infringement. In order to assure privacy protection, the measure explicitly excludes from the definition of copyright management information any personally identifiable information relating to the user of a work. Fair Use. The legislation makes clear that the Fair Use doctrine in the copyright law--which generally preserves the ability of users, including libraries, teachers and scholars, to make limited, noncommercial use of copyrighted works--continues to apply with full force in a digital networked environment. First Sale. Given the historical importance to libraries, scholars, educators, and consumers of transferring to others lawfully acquired copies of works, the legislation offers assurances of the continued applicability in the digital environment of the First Sale doctrine. Library Provisions. The legislation permits libraries to utilize digital technologies for preservation purposes and increases the number of copies of a work that may be made for archival purposes. Distance Learning. The legislation fully authorizes educators to use data networks for distance learning in the same way they now use broadcast and closed-circuit television for that purpose. Ephemeral Copying. The legislation amends the Copyright Act to make explicit that it is not an infringement for a person to make a digital copy of a work when such copying is made incidental to the operation of a computer in the course of the use of the work in a way that is otherwise lawful. Preemption. Finally, the measure includes a measure to address the increasing practice by which copyright owners use non-negotiated terms in ``shrink-wrap'' or ``click-on'' licenses in ways that can abrogate or narrow federal rights consumers otherwise would enjoy under the federal Copyright Act. With this bill, Mr. Campbell and I have proposed the only comprehensive legislation offered in this body to date that addresses the fundamental issues raised by the transition from the analog era to the digital era. I look forward to working with the gentleman from California, the members of the Judiciary Committee, the administration, and external interested parties as we preserve the balance that will be necessary to advance the progress of science and useful arts in the 21st century. Digital Era Copyright Enhancement Act section-by-section analysis Short title. The ``Digital Era Copyright Enhancement Act.'' Fair Use. Section 2 makes clear that the fair use doctrine continues to apply with full force in the digital networked environment. As initially proposed, the World Intellectual Property Organization (WIPO) Copyright Treaty would have expanded the rights of information owners while arguably narrowing the exceptions to those rights which have long been recognized as appropriate for limited copying by libraries and similar entities for public information purposes. At the instigation of the United States, the delegates adopted the following Agreed Statement to clarify the meaning of the treaty in this respect: ``It is understood that the provisions of Article 10 permit Contracting Parties to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.'' Consistent with this Agreed Statement, Section 2 of the proposed bill would amend section 107 of the Copyright Act to reaffirm that a finding of ``fair use'' may be made where appropriate, without regard to the technological means by which a work has been performed, displayed or distributed or whether an effective technological protection measure has been applied to it. This language would assure that the fair use doctrine would remain technology neutral, applying to all copyrighted works, regardless of the manner in which they are distributed or used. Library/Archive Exemptions. In 1976, the Copyright Act was expressly amended to facilitate the preservation of decaying or otherwise unavailable copyrighted works by authorizing libraries and archives to make a ``facsimile'' of such works. (An analog facsimile was the best available technology at the time.) This clause has been read by some, however, to preclude the use of digital or other advanced technology for preservation purposes. Like the Administration's original NII legislation introduced in the 104th Congress (H.R. 244I/S. 1284), Section 3 would amend section 108 of the Copyright Act to allow libraries and archives to use new forms of technology by deleting the phrase ``in facsimile form''. In addition, Section 3 would permit the making of three rather than just one copy of a work for archival purposes as allowed under current law, as well as in instances in which the existing format in which a work is stored has become obsolete. Such an approach was specifically endorsed by the Register of Copyrights in her testimony on the original NII legislation. First Sale. Section 4 would amend section 109 of the Copyright Act to establish the digital equivalent of the ``first sale'' doctrine. Under current law, a person who has legally obtained a book or video cassette may physically transfer it to another person without permission of the copyright owner. Given the historical importance to libraries, scholars, educators, and consumers of transferring to others lawfully acquired copies of works, Section 4 would permit electronic transmission of a lawfully acquired digital copy of a work as long as the person making the transfer eliminates (e.g., erases or destroys) that copy of the work from his or her system at substantially the same time as he or she makes the transfer. To avoid any risk that the mere act of making the transfer would be deemed an infringing act under existing section 116 of the Copyright Act, Section 4 of the proposed bill states that the ``reproduction of the work, to the extent necessary for such performance, display, or distribution, is not an infringement.'' Distance Learning. Since the advent of broadcasting, educators have striven to use the latest communications technologies to enhance educational opportunities. Through the Copyright Act, as amended in 1976, Congress has supported such ``distance learning'' by exempting qualifying television transmissions designed to be received in traditional class- room like settings. (At the time, broadcast and closed- circuit television was the ``state of the art'' distance learning technology.) Section 5 of the proposed bill would amend sections 110(2) and 112(b) of the Copyright Act to ensure that educators can use personal computers and new technology in the same way they now use televisions to foster distance learning. Students today enjoy the benefits of distance education in large part because section 110(2) allows for the ``performance or display'' of certain works delivered by means of ``transmission'' (principally television) in non- profit educational settings. It is generally understood, however, that transmission of a work over a digital network may constitute a ``distribution'' as well as (or even instead of) a ``performance'' or ``display.'' Section 5 of the proposed bill thus would specifically add ``distribution'' to the list of conditionally exempt educational uses. In addition, Section 5 would broaden the range of works that may be performed, displayed, or distributed to include the various kinds of works that might be included in a multimedia lesson. It also would broaden the educational settings subject to the exemption to include the various no- classroom settings (including the home) in which pupils could receive distance learning lessons. To guard against the potential for abuse, Section 5 stipulates that the performance, display, or distribution of the work must occur as part of ``the systematic instructional activities of a governmental body or nonprofit educational institution,'' must be ``directly related and of material assistance to the teaching content of the transmission,'' and must be provided to ``students officially enrolled in the course in connection with which [the work] is provided.'' Moreover, like existing section 110(2), the new provision would extend an exemption only to teachers and their institutions, and only for materials used to illustrate particular lessons. It would not extend to companies or individuals who prepare distance learning materials for use by educators; they would be required to obtain copyright licenses, as appropriate, for the incorporation of preexisting works in such materials. Ephemeral Copying. Given the architecture of computers and data transmission networks, the simple act of viewing a downloaded image or sending an e-mail message creates an incidental or ephemeral reproduction (e.g., in RAM or cache memory). Although such ``ephemeral copies'' are not stored permanently, content owners last year sought to get the same rights to control ephemeral reproductions as they enjoy regarding analog ``hard'' copies (or digital ROM copies) today. In fact, as originally drafted, Article 7 of the WIPO Copyright Treaty expressly provided that temporary reproductions should be considered the equivalent of hard copies and thus subject to proprietors' control. In response to strong opposition from both developed and developing countries at the Diplomatic Conference in Geneva in December, Article 7 was dropped from the treaty in its entirety. Section 6 of the proposed bill would amend section 117 of the Copyright Act to make explicit that it is not an infringement for a person to make a digital copy of a work when such copying is made incidental to the operation of a computer or other device in the course of the use of the work in a way that is otherwise lawful, as long as such copying does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. Thus, for example, a person would not be subject to liability for viewing a copyrighted work on the World Wide Web simply because ephemeral copies of the work would have been made in the normal course of the operation of the Internet. Preemption. Content owners are increasingly using ``click on'' and ``shrink wrap'' license terms to limit what a consumer can do with a lawfully acquired copy of a work, or the uses to which a consumer can put the work itself. They are engaged in an effort at the state level to achieve adoption of a change to the Uniform Commercial Code that would recognize the validity of such terms under state contract law. If successful in these efforts, content owners will be able to eliminate fair use and other privileges established under the federal Copyright Act by means of stipulated license terms to which a consumer must agree in order to gain access to a work. Section 7 would effectively preclude copyright owners from using non-negotiable license terms to abrogate or narrow rights and use privileges that consumers otherwise would enjoy under the Copyright Act, such as their fair use privilege, by preempting state common and statutory law, such as the proposed changes to the Uniform Commercial Code. In recognition that businesses and institutions might be willing to forego these rights in return for other consideration in an arms-length negotiated contract setting, preemption only applies with respect to non-negotiable license terms. WIPO Treaty Implementation. Section 8 would implement the anti-circumvention and copyright management information provisions of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. With respect to anti-circumvention, the WIPO treaties require only that contracting parties ``provide adequate legal protection and effective legal remedies against circumvention of effective technological measures. . . .'' Adopting a conduct-oriented approach fully compliant with this mandate, new section 1201 would create liability for a person who, for purposes of facilitating or engaging in an act of infringement, knowingly removes, deactivates, or otherwise circumvents the application or operation of an effective technological measure used by a copyright owner to preclude or limit reproduction of a work in a digital format. Conduct governed by a separate chapter (e.g., chapter 10--the Audio Home Recording Act of 1992) would not be governed by this new provision. The provision does not apply to technological protection measures applied to a work in an analog format. New section 1202 would create liability for a person who knowingly provides false copyright management information or removes or alters copyright management information without the authority of the copyright owner, and with the intent to mislead or induce or facilitate infringement. In order to assure privacy protection, this provision explicitly excludes from the definition of copyright management information ``any personally identifiable information relating to the user of a work, including but not limited to the name, account, address or other contact information of or pertaining to the user.'' New section 1203 establishes civil penalties for violations of sections 1201 and 1202. Unlike the Administration's treaty implementation bill, no criminal penalties would be imposed for violations of either section 1201 or 1202. Conforming Amendments. Section 9 merely makes conforming amendments to the table of sections for chapter 1 of title 17 and the table of chapters for title 17. Effective Dates. Section 10 sets forth two separate effective dates. Those provisions unrelated to the WIPO treaties would be effective on the date of enactment. The WIPO implementation provisions would take effect when both treaties have entered into force with respect to the United States.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I am pleased to join with my friend, Bill McCollum, in introducing the Responsible Borrower Protection Bankruptcy Act. This legislation is intended to ensure that our personal bankruptcy laws operate fairly, efficiently, and free of abuse. Today's consumer bankruptcy system is fundamentally flawed. The Bankruptcy Code makes virtually no attempt to calibrate the level of bankruptcy protection to the level of each debtor's need. Rather, it allows a debtor to discharge debts even if the debtor can repay those debts. Currently, about 70 percent of bankruptcy filers use chapter 7, which has no provision for debt repayment even if the filer can repay. Only 30 percent use chapter 13, which sets up repayment plans. At present, individuals with significant income and the ability to repay some of their debts can obtain the same full discharge of debts as individuals with little or no income and assets. Our legislation addresses this problem by requiring that a debtor demonstrate that he or she actually needs bankruptcy relief and, if so, provides only the amount of relief that is needed. This needs-based system would create a simple formula, based on a debtor's income and obligations, to determine exactly how much relief the debtor needs. Individuals with no means to repay their debts could file for bankruptcy under chapter 7, thereby obtaining complete debt relief and a fresh start. Individuals who can repay a portion of their debts would file under chapter 13 and begin a repayment plan based on what they can afford. Recognizing that an individual's circumstances can change, the legislation also requires a periodic review of a debtor's financial situation so the repayment can be adjusted if necessary. The legislation also imposes a number of procedural reforms to improve the bankruptcy process. It streamlines bankruptcy proceedings so that they are more efficient for all parties involved. It requires that debtors receive information about alternatives to bankruptcy, including credit counseling. Educating consumers about their options should help to spare many consumers from the bankruptcy process, since many creditors are willing to create alternative repayment programs with people in financial distress. With this change in the Bankruptcy Code, the bankruptcy system would protect consumers in financial difficulty without unfairly imposing inappropriate additional costs and burdens on consumers who continue to pay their debts. The Responsible Borrower Protection Bankruptcy Act recognizes that individuals who file for bankruptcy should receive the amount of debt relief they truly need--no more and no less. All consumers should benefit from this legislation--every consumer pays higher prices for goods and services and higher interest rates as a result of bankruptcy losses. Enactment of the Responsible Borrower Protection Bankruptcy Act will reduce the level of those bankruptcy losses, thereby reducing the cost of credit for all consumers. Also benefiting from this reform will be borrowers who pose some risk for lenders. The ease of filing for chapter 7 relief today discourages the making of loans to these creditworthy but somewhat marginal borrowers. Honest, well-intentioned low-income consumers will find greater opportunities to obtain credit when our legislation is enacted. I am pleased to be an original cosponsor of this legislation and will work closely with my colleague, Mr. McCollum, to ensure its passage.

Mr. BOUCHER

Mr. BOUCHER. Mr. Speaker, I am pleased to rise in support of the conference report on telecommunications reform and urge its adoption by the House. This measure will create competition in our telecommunications markets, first by freeing telephone companies to offer cable TV service inside their telephone service areas, and for the first time, bringing genuine competition to the cable market. Second and correspondingly, by allowing cable companies and others to offer local telephone service and bringing genuine competition for the first time to the local telephone market. Third, the bill will enhance competition in the long-distance industry by freeing the seven Bell operating companies to offer interLATA long-distance service. Fourth, by making the equipment market in the United States more competitive by enabling those same seven companies to manufacture equipment. A number of benefits will inure from the passage of this bill. Consumers will enjoy better pricing, as competition comes into markets that today are characterized as monopolies or near monopolies. New services will be introduced by the new entrants into these various markets. Perhaps most importantly, this is the means by which our country will obtain a modernization of its telecommunications network. Telephone companies to offer cable service will deploy broad-band technologies throughout their local exchanges. Cable companies to offer local telephone service will install switches in their coaxial networks, and the United States will then have the most modern network that exists anywhere in the world. Mr. Speaker, I am pleased to urge support for the conference report.