Testimony of Douglas Bennett

September 17, 1997
Executive Summary

The Digital Future Coalition is comprised of 38 of the nation's leading non-profit educational, scholarly, library, and consumer groups, together with major commercial trade associations representing leaders in the consumer electronics, telecommunications, computer and network access industries. The DFC, formed in November of 1995, is committed to preserving the balance now struck in the Copyright Act between protecting intellectual property and affording access to it as copyright law is updated for the digital age. The DFC believes that . . . .

I. Congress Should Act on Comprehensive and Balanced Digital Copyright Legislation Before Ratifying the WIPO Treaties.

H.R. 2281 -- introduced at the President's request -- 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. Thus, while the DFC supports the WIPO treaties, it strongly opposes H.R. 2281 as drafted.  Legislation recently offered in the Senate by Senator John Ashcroft of Missouri (S. 1146) would ensure that the copyright-related interests of educators, librarians, high-technology businesses, and other information consumers are balanced with the protections properly afforded to copyright owners and proprietors. The DFC urges Members of the House of Representatives to consider similar legislation for the reasons set forth in its full testimony.

II. The Administration's Proposals Are Anti-Consumer, Anti-Technology, Anti-Competitive and Threaten Personal Privacy.

  The Digital Future Coalition has three principal concerns regarding H.R. 2281:

1. proposed new Sections 1201 through 1204 of the Copyright Act threaten to upset the existing balance of our copyright system and go beyond anything that is required to bring U.S. law into conformity with the WIPO treaties;
2. proposed Section 1201 threatens to stifle innovation and to effectively negate privileges users and consumers now enjoy under copyright law, such as fair use. In particular, 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; and
3. proposed 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.

Specifically, the Administration's proposed implementing legislation would:

• damage education and research by allowing copyright owners to "lock up" public domain materials, and thwart the fair use privileges of information consumers;
• jeopardize the security of computer networks by impeding encryption research;
• prevent legitimate "reverse engineering" in the development of new software (effectively overturning a series of judicial decisions recognizing reverse engineering as a legitimate fair use);
• outlaw, or force the redesign of, legitimate devices with substantial non-infringing uses (effectively overruling the Supreme Court's Betamax decision, which spawned the VCR revolution for the benefit of all American consumers and the entertainment industry);
• require judges to second-guess manufacturers' decisions about the best design for new generations of consumer electronic equipment and computers;
• frustrate efforts to provide parents with the capability to monitor and control children's on-line activities; and
• threaten the personal privacy rights of electronic consumers by preventing them from disabling mechanisms designed to track their on-line activities in the same way that some consumers now lawfully may -- and frequently do -- neutralize telephone "caller id" technology.

III. Proposals to Update the Copyright Act Critical to Commercial Innovators, Educators, Librarians, Archivists and the Public Are Missing from the Administration's Legislation.

Just as the proposed implementing legislation would do too much, it also would do too little. Any WIPO-related legislation also should: satisfactorily resolve the on-line service provider liability debate; confirm that the fair use and first sale doctrines apply in cyberspace; permit preservationists and educators legal access to the latest technology; and assure that consumers cannot be forced in non-negotiated licenses to sign away information access privileges assured them under current copyright law. Moreover, as in the past, formal ratification of the treaties should await broad agreement on such legislation.

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" by ensuring balance in the Copyright Act into the next millennium.

Click here to see Dr. Bennett's full testimony