DFC letter to Chairman Henry Hyde prior to mark-up in the House Judiciary Committee
May 22, 2020
Dear Representative Hyde:
In the coming weeks, the Judiciary Committee is expected to consider H.R. 2281. With so much of the debate about copyright in the digital environment focused on the need to combat "piracy in China," it may be easy to lose sight of two fundamental points about H.R. 2281, a Clinton Administration proposal to implement two international copyright treaties.
First, this bill is intended to implement the treaties under domestic law for application here at home, not abroad; and second, the American intellectual property system exists to promote an important public purpose: "The Progress of Science and useful Arts." By any standard, H.R. 2281 represents an unprecedented departure from our copyright tradition, which maintains a balance among owners, creators, and users of copyrighted information.
The Digital Future Coalition -- representing millions of teachers, librarians, scientists, scholars, writers, computer users, computer hardware manufacturers, software developers, and technology innovators ö supports the WIPO treaties. However, we strongly oppose H.R. 2281. The DFC urges you to reject this one-sided legislative proposal, and to consider instead the alternative, balanced approach to WIPO treaty implementation embodied in the Boucher-Campbell bill, H.R. 3048. Moreover, we urge you to adopt as well a comprehensive and balanced solution to the issue of "on-line service provider" liability as part of any package of implementing legislation.
As reported, H.R. 2181 is a drastic measure which would have serious negative effects. It would:
Adoption of H.R. 2281's approach would result in overregulation of emerging technology and a roll-back of fair use privileges, while leaving a wide range of other consumer issues unaddressed. The DFC believes that H.R. 2281 is a seriously defective legislative vehicle. Moreover, this legislation has no popular support outside the industries which it would directly benefit.
The fundamental flaw of H.R. 2281 is that rather than adding new sanctions for the misuse of digital information technology to infringe copyright, it seeks to regulate technology itself. In addition, it would impose criminal sanctions on ordinary Americans who use that technology to "access" or copy copyrighted works, even for innocent and lawful purposes such as student use, critical commentary, and repair of personal computers.
Proponents of H.R. 2281 argue that it is not an assault on consumers' traditional use privileges under copyright law. They point out that while criticism of a work that has been made available to the public may be fair use, the doctrine does not allow a would-be critic to burglarize an author's study to get at a manuscript. The analogy, however, is defective. The anti-circumvention provisions of H.R. 2281 are not designed to help authors withhold their works from public scrutiny. Rather, they will give content owners the unprecedented power to bar consumers (including value-added innovators) from making otherwise lawful uses of material which is being distributed commercially to the general public, whether in stores or over the Internet. Thus, H.R. 2281 creates significant new proprietary rights -- at the expense of the public interest.
Moreover, while members of the Subcommittee have acknowledged the existence of a clear fair use privilege to copy material that is acquired with permission of the rightsholder, neither section 1201(d) nor any other part of H.R. 2281 provides for this defense to be applied to a charge of circumvention under section 1201(b). This acknowledged privilege of fair use would not save the availability to the lawful user of a single device necessary for its exercise.
The new WIPO treaties do not require enactment of H.R. 2281. The DFC strongly favors ratification of the treaties, which stand as firmly for the principle of balance between owners' rights and use privileges as do the traditions of American copyright law itself. Similarly, the DFC condemns copyright piracy in all its forms, and believes that some additional protection for intellectual property in the network environment may be required. The DFC believes, however, that there is a better way to achieve these ends than H.R. 2281: enactment of the Boucher-Campbell bill, which will give the content community strong tools to discourage infringing conduct here at home while promoting the interests of society at large.
The DFC urges you to reject H.R. 2281 and instead to fully support H.R. 3048, a bill that will help all of your constituents benefit from the advances of new technology.
For the Digital Future Coalition