From the House Committee on the Judiciary
Digital Future Coalition Testimony Regarding Comprehensive Implementation of the December 1996 WIPO Copyright and Phonograms Treaty
United States House of Representatives Judiciary Committee
Subcommittee on Courts and Intellectual Property
Presented by Douglas Bennett
President, Earlham College
September 17, 1997
Mr. Chairman, Representative
Frank, and Members of the Subcommittee. I am honored to appear before
the Subcommittee on behalf of the undersigned members of the Digital Future
Coalition to share with you our large and diverse group's views on preserving
balance in copyright law for the digital age. The Digital Future
Coalition is comprised of 38 of the nation's leading non-profit educational,
scholarly, library, and consumer groups, together
I. Congress Should Act on Comprehensive and Balanced Digital Copyright Legislation Before Ratifying the WIPO Treaties.
The Digital Future Coalition (DFC) welcomes President Clinton's submission of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty for ratification. That action presents an important opportunity for the House -- through the careful crafting of comprehensive legislation concerning copyright in the digital future -- to ensure the continuation of balance in copyright law and policy as the nation moves into the next millennium.
Since its inception, the DFC has urged policy makers domestically and internationally to recognize the importance of both information creators and users in the public and private sectors to the successful development of the emerging digital, networked environment. Our coalition was extremely pleased, therefore, that the WIPO treaties adopted after intense debate and many modifications expressly recognize and endorse the principle of balancing the interests of copyright owners and information consumers. Domestic law should do the same.
Regrettably, however, the legislation proposed by the Administration to implement the WIPO treaties -- introduced at the President's request in late July -- is seriously defective. For the reasons detailed below, H.R. 2281 is both more and less than the WIPO proceedings and sound public policy require it to be. What the bill contains is gravely flawed and what it omits is critical to industry and society as a whole. As Congress undertakes the first major revision of the Copyright Act since 1976, many issues that should be resolved to assure continued balance in U.S. intellectual property law -- issues such as fair use, first sale, library preservation, distance education, service provider liability, and the enforceability of non-negotiated license terms -- are simply not addressed by the proposed implementing legislation at all.
Thus, while the DFC supports the WIPO treaties, we strongly oppose H.R. 2281 in its current form as inimical to maintaining balance in copyright law and policy as it is updated for the digital age. Moreover, the DFC believes that the nature and scope of such implementing legislation must be fully understood before these treaties are ratified. Upon introduction, this legislation apparently was presented to you and others, Mr. Chairman, as an agreement among stakeholders. As articulated in a letter of August 4 jointly signed by the DFC and five other major organizations, the DFC wishes to make absolutely clear that it is not. Indeed, in the Coalition's view, the proposed implementing legislation would upset the balance that has characterized U.S. copyright law throughout its history.
Unlike the flawed
bills introduced at the Administration's request, legislation
I have noted, Mr. Chairman, that the DFC is deeply concerned both with what the Administration's legislation contains and what it omits. I would like to take a few moments to address each of those points in turn.
II. The Administration's Proposals are Anti-Consumer, Anti-Technology, Anti-Competative and Threaten Personal Privacy.
The Digital Future Coalition wishes to underscore here three principal concerns regarding the proposals made by the Administration to date:
First, not only do proposed new Sections 1201 through 1204 of the Copyright Act threaten to upset the existing balance of our copyright system, but they go beyond anything that is required to bring U.S. law into conformity with the WIPO treaties. With respect to the issue of anti-circumvention, there is some question as to whether any implementing legislation is required. Moreover, to the extent that any such provision is necessary, the mandate of the treaties could be satisfied by non-criminal provisions which penalize circumvention of technological safeguards in connection with copyright infringement, rather than ones which attempt to regulate the evolution of new electronic technologies.
Second, with regard to Section 1201, this sweeping new proposed provision of the Copyright Act attempts to ban all devices that could be used to circumvent technological measures designed to restrict access or prevent unauthorized reproduction of copyrighted works. This provision threatens to stifle innovation. Furthermore, the privileges users and consumers now enjoy under copyright law, such as fair use, could effectively be negated by this needlessly overbroad provision.
Third, Section 1202 threatens with liability even individuals who, without any intention to infringe or promote infringement, incidentally alter copyright management information designed to identify copyrighted works. Taken together, Sections 1201 and 1202 --and the egregious penalties proposed in Sections 1203 and 1204 -- create significant risks to the privacy of individual users of digital information networks. While a detailed analysis of proposed new Section 1201 of the Copyright Act is appended to this testimony, Mr. Chairman, permit me to elaborate briefly on the DFC's concerns with the approach and language of the Administration's proposals in H.R. 2281 over all.
Section 1201 -- Stifling Innovation and Punishing Consumers
Last year, the Clinton Administration proposed so-called "black box" legislation that could have had serious consequences for the design of future general purpose computers, digital VCRs and other recording products. The DFC helped demonstrate to the 104th Congress that this approach was overly broad and needlessly anti-innovation and anti- consumer. Congress rejected the proposal. In December 1996, over 120 nations attending the World Intellectual Property Organization (WIPO) diplomatic conference in Geneva rejected the same proposal. Instead, the WIPO nations adopted a provision that merely requires countries to provide "adequate legal protection . . . against the circumvention of effective technological measures."
With the introduction of its proposed treaty implementation legislation, the Administration has again taken a broader approach that will punish consumers, educators, librarians, researchers, and others by unreasonably impairing the availability and capability of multi-purpose devices. This approach will have far-reaching negative ramifications for the future development and exploitation of digital information networks like the Internet.
Specifically, the Administration's proposed implementing legislation would:
Of particular concern
to DFC, violations of Section 1201 are not tied to infringement of any
intellectual property right held by a copyright owner. As a result,
liability is imposed even when the purpose of the activity is permitted
by the Copyright Act today -- as in cases of fair use or access to unprotected
material. Such a provision is unprecedented in copyright law.
It cannot be overemphasized that H.R. 2281 criminalizes activities that
are not necessarily related in any way to copyright infringement.
Were the proponents of H.R. 2281 interested merely in combating piracy,
Mr. Chairman, they should have no objection to making infringement an
element of the offenses proposed in Section 1201, yet they have opposed
such a statutory formulation.
Proposals to Update the Copyright Act Which are Critical to Commercial
Innovators, Educators, Librarians, Archivists and the Public are Missing
from the Administration's Legislation.
Currently, a good
start has been made in resolving the issue of on-line service provider
liability with the introduction of Representative Coble's bill, H.R. 2180
the "On-Line Copyright Liability Limitation Act" - and Senator
Ashcroft's more comprehensive bill, S. 1146.
In addition to liability
considerations, there are five other issues which the Digital Future Coalition
believes can and should be resolved in this debate in a manner fully consistent
with the WIPO treaties:
Licenses -- Technology has never before permitted the mass marketing
of products subject to "take-it-or-leave-it" licenses printed
on package labels or displayed on-line. Limits should be placed on use
of such license terms (including so-called "shrink-wrap" and
"click-on" licenses) to assure that teachers, students, and
other users are not forced to give up their use privileges as a condition
of access to works in digital and non-digital formats.
License Terms: the Collision of Contract, Copyright & Consumers
The issues of circumvention and copyright management information addressed by H.R. 2281do not, and cannot, stand alone. If Congress seeks to ensure continued balance in the Copyright Act as it is updated for the digital age, other issues of equal importance must be resolved at the same time. Accordingly, the Digital Future Coalition submits that any legislative package designed to implement the WIPO treaties should address the issues of service provider liability, fair use, distance learning, first sale, digital preservation, and non-negotiated license terms. Moreover, as in the past, formal ratification of the treaties should await broad agreement on such legislation.
The Digital Future Coalition, itself comprised of information proprietors and users, recognizes the need to modernize copyright to apply productively in cyberspace. As Congress undertakes the first major overhaul of the Copyright Act in over two decades, the DFC urges all Members to take the time and care required to honor and reach the Framers' goal of assuring "Progress in Science and the Useful Arts." The DFC looks forward to working with this Subcommittee, the full Judiciary Committee, and the Administration to enact comprehensive legislation that ensures balance in the Copyright Act into the next millennium.
Detailed Analysis of Proposed 17 U.S.C. 1201 in H.R. 2281
Section 1201(a) concerns the circumvention of a technological protection measure that controls "access" to a copyrighted work. Section 1201(a)(1) prohibits the act of such circumvention; Section 1201(a)(2) prohibits the manufacture or importation of devices which achieve such circumvention. In plain English, Section 1201(a) seeks to prevent a user from gaining access to a work without paying for it. While the general principle is non-controversial, the language implementing it is far too rigid. It fails to acknowledge that there are legitimate reasons for unauthorized access. Section 1201(a) is not designed to implement the WIPO treaties, which address the circumvention of specific anticopy technologies; rather, Section 1201(a) is designed to prevent the circumvention of technologies designed to bar any unauthroized access, for whatever purpose, to copyrighted works.
The problems begin with Section 1201(a)(1), which is not limited to cases where a user has not paid for access to the work. Thus, even if a user does pay for access to the work, the content owner could still deny her access to parts of that work. The user, for example, might purchase a multimedia product which contains a bug. Section 1201(a)(1) prevents the user from circumventing the technology which controls access to the computer code underlying the multimedia product. This prevents the user from correcting the bug herself. The vendor of the product might elect to deny its purchasers access to the underlying code so as to force the purchasers to use the vendor's maintenance services. Moreover, Section 1201(a)(1) could operate to prevent a licensee from gaining access to a work to make a back-up copy of a software program, even where this would be permitted under Section 117 of the Copyright Act. Likewise, it could be employed to frustrate the operation of the "first sale" doctrine under Section 109.
Additionally, it would be easy to exploit this provision to obtain de facto perpetual copyright protection. If a novel were about to enter the public domain because the term of protection would soon expire, the content owner could attach a new foreword, and then protect the novel and the foreword with access control technology. Because the foreword is still protected under the Copyright Act, the user would be barred circumventing the access control technology, even though the text of the novel itself was no longer protected.
Section 1201(a)(1) would also chill encryption research. The field of cryptography advances by researchers attempting to crack existing security systems. Once asystem is cracked -- once its weaknesses are identified -- researchers can find ways to strengthen it. Section 1201(a)(1) seems to permit this research activity only if the content owner permitted his encrypted work to be decrypted; that is, only if the owner of the content protected by the system agrees in advance to the research by the particular researcher. The research process will inevitably be retarded as the general counsels of universities and encryption firms prohibit researchers from proceeding until all necessary authorizations have been received in writing.
It would be a mistake to assume that only legitimate content owners would take advantage of Section 1201(a)(1). A prohibition on the circumvention of access control technology could prevent parents, for example, from supervising their children's use of the Internet.
That regime also could operate to restrict an individual's ability to protect his personal privacy. Once a "cookie" -- a tiny computer program which transmits information concerning the contents of a computer's memory -- gets implanted in a user's hard drive, Section 1201(a)(1) could prohibit the user from circumventing the cookie's access control technology in order to disable it. Cookies, after all, are arguably copyrighted works. This inability to disable a cookie would be particularly destructive if the cookie belonged to a criminal who was using the information it generated for unlawful purposes. Section 1201(a)(1) would in similar fashion prevent a user from disabling a virus -- another copyrighted work.
Section 1201(a)(2) compounds the problems identified with respect to Section 1201(a)(1) by prohibiting the manufacture of products which would enable these desirable acts of circumvention. Moreover, Section 1201(a)(2) has problems of its own unrelated to Section1201(a)(1).
Section 1201(a) contains one provision targeting the act of circumvention and another provision targeting the manufacture of circumvention devices. Section 1201(b), by contrast, targets only the manufacture of circumvention devices. In earlier drafts considered by the Administration, Section 1201(b) also prohibited the "use" of circumvention devices. The Administration treats its deletion of the use prohibition as a major concession to the user community. It is, however, a completely empty concession, because the manufacturers are still prohibited from making the devices users might wish to use.
The fundamental flaw with Section 1201(b) is that it prohibits the manufacture of anticopy circumvention devices, regardless of the purpose of the circumvention. Like Section 1201(a), Section 1201(b) is based on two flawed assumptions. First, it incorrectly assumes that only bad actors -- pirates -- want to circumvent. Second, it incorrectly assumes that only good actors -- legitimate content providers -- would want to use anticopy technologies.
There are many legitimate reasons for seeking to circumvent anticopy technologies. These reasons are as numerous as the exceptions to copyright contained in the Copyright Act. The most obvious is fair use. A developer of innovative Internet software, for example, would not be able to purchase or develop the tools necessary to circumvent a software lock intended to prevent reverse engineering permitted under the fair use doctrine. By preventing this reverse engineering, a dominant vendor of Internet access software could limit the ability of the innovative software to interoperate with the vendor's software. Section 1201(b) would also limit the exercise of privileges other than fair use. Libraries might not be able to obtain the devices necessary to make the preservation copies permitted under Section 108. Purchasers of computer programs might have no practical way to make back-up copies permitted under Section 117. In short, Section 1201(b) would render ineffective almost all the exceptions in the Copyright Act.
Finally, Proponents of Section 1201 assert that the savings clause in Section 1201(d) insures that fair use and the other limitations in the Copyright Act will not be curtailed by Section 1201. Regrettably, Section 1201(d) as drafted does not achieve this result. It simply says that Section 1201 will not "affect" existing limitations on the exclusive rights of copyright owners or existing defenses to actions for copyright infringement brought in connection with those rights. While Section 1201 will not as a formal matter prevent users and consumers from relying on limitations and exceptions to copyright, as a practical matter it will preclude the exercise of these limitations and exceptions by preventing the manufacture of the technologies necessary for their exercise.