Letter to Ira Magaziner -- Advisor to the President
July 24, 1997
Re: WIPO Treaties Implementing Legislation
Dear Mr. Magaziner:
We write to express our serious concerns with the WIPO Treaties Implementing Legislation proposed by the Department of Commerce. We very much appreciate the efforts of Andrew Pincus, the general counsel of the Department of Commerce, to hear the views of all affected parties. He was extremely generous with his time, and met on several occasions with different constituent members of the Digital Future Coalition. Nonetheless, the legislation proposed by the Department of Commerce retains almost all of the deficiencies of the bill initially suggested to the Department of Commerce by the Patent and Trademark Office.
The Commerce proposal's fundamental flaw is that it goes far beyond the requirements of the WIPO Treaties, and thus runs counter to the minimalist, deregulatory approach correctly advocated by A Framework for Global Electronic Commerce . As a result, the Commerce proposal will stifle the growth of the global network it is intended to promote.
The Treaties only require contracting parties to provide legal remedies against the circumvention of technological protection measures for the purpose of infringing a copyrighted work -- in other words, conduct leading to infringement. The attached language proposed by the DFC does exactly that, and nothing more.
By contrast, the Commerce proposal establishes a new and unprecedented regime which prohibits technologies which enable access to a work or circumvention of technological protection measures, even for lawful purposes. By using a blunderbuss rather than a rifle, the Commerce proposal as a practical matter will inhibit encryption research and the development of interoperable computer and telecommunication systems. It will also deprive teachers, librarians, and consumers of many of the uses and devices now permitted by the Copyright Act.
The Commerce proposal is motivated by the thoroughly appropriate desire to limit online copyright infringement. But by striving to prevent every possible opportunity for infringement, the Commerce proposal threatens many legitimate technologies and activities critical to the global network's infrastructure and widespread use. Conversely, the attached language complies with the Treaties and provides content providers with sufficient additional protection against online infringement without foreclosing necessary technologies and uses. We strongly urge you to adopt our language as the Administration's proposal for the new Chapter 12 of the Copyright Act.
Furthermore, we believe that any provision relating to technological protection measures should be part of a broader bill updating copyright law for the digital age. Such a bill should address a range of issues including online service provider liability, distance learning, incidental copies, and fair use. Only a broad bill can maintain the balance of the existing Copyright Act.
Thank you for your consideration. Please do not hesitate to contact me if you have any questions.