HRRC Letter to Chairman Hatch

 August 8, 2020

The Honorable Orrin Hatch
Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Mr. Chairman:

We write to advise you of several concerns we have with S. 1121, the WIPO Copyright and Performances and Phonograms Treaty Implementation Act of 1997.

One might conclude from your introductory remarks that you believe S. 1121 represents a compromise acceptable to groups, such as the HRRC, which opposed section 1201 of the Administration's NII legislation. Although, separately and as a part of the Digital Future Coalition, we have met with representatives of the Department of Commerce, other Administration agencies, and representatives of the "content" community, we find this legislation -- particularly the new section 1201 re circumvention of technological measures -- to be just as objectionable as the Administration's pre-WIPO NII legislation, which was rejected in the last Congress.

A major problem is that violations of section 1201 are not tied to infringement of any other intellectual property rights held by the content provider. This in effect creates a new right, at the expense of users. As a result, liability is imposed for "circumvention" even when the purpose of the activity is permitted by copyright -- as in cases of fair use, or access to public domain or non-copyrighted material. This is unprecedented in copyright law, and is not required by the WIPO treaties.

Another major problem is that section 1201 retains the approach of putting the courts in charge of the design of bona fide, multipurpose, integrated products such as recorders and personal computers. It does this principally by extending response obligations to technological protection measures down to the level of parts and components of the devices. Hence, selection of one particular component over another may be reviewed by a court, and may be the basis for a finding of "intent" to avoid some particular anti-copy technology. The result may be an obligation to make various unilateral technologies "effective" through design alterations in multipurpose devices -- no matter how invidious, expensive, or user-unfriendly these alterations may be.

Unfortunately, in its present form the legislation honors neither the fair use protections, to obtain and use multipurpose devices, that were preserved by the Supreme Court in the "Betamax" case, nor the balanced and user-sensitive result obtained by the Administration and the private sector in the WIPO treaties themselves. The treaty provisions simply require appropriate respect in national laws for "effective technological measures" that preserve rights of proprietors. They do not require that consumers cannot any longer obtain devices in order to exercise fair use rights, or that bona fide, multipurpose devices be designed so that technological progress may be impeded by courts.

Mr. Chairman, we helped forge the private sector consensus among proprietors, users, and manufacturers that made the WIPO treaty compromise possible. We are not the only group that has severe concerns over this legislative draft. We remain willing to work with the Administration, other interested groups, and you to forge implementing legislation that reflects the balance of the treaties themselves. We understand that, with the best of faith, consensus has been, and will continue to be, difficult to find. We do feel the obligation, however, to advise you that we must oppose the present version of S. 1121.

We understand that a hearing on this legislation may be scheduled for September. We would welcome an opportunity to explain our views as to how best to preserve balance in the Copyright Act in amending it for the 21st Century.


Ruth Rodgers
Executive Director
Home Recording Rights Coalition



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