Letter from university professors to the Commerce Committee leadership

Concerns about H.R. 2281

June 4, 1998


The Honorable Tom Bliley
Chairman
Commerce Committee
2409 Rayburn House Office Building
Washington, D.C. 20515-4607

The Honorable W.J. Tauzin
Chairman
Subcommittee on Telecommunications, Trade and Consumer Protection
2183 Rayburn House Office Building
Washington, D.C. 20515-1803

The Honorable John Dingell
2328 Rayburn House Office Building
Washington, D.C. 20515-2216

The Honorable Edward J. Markey
2133 Rayburn House Office Building
Washington, D.C. 20515-2107


Dear Sirs:


In the Fall of 1997, a number of us were among the 62 teachers of intellectual property and technology law who wrote to Chairman Coble of the House Judiciary Subcommittee on Courts and Intellectual Property to offer a critique of H.R. 2281, the Administration-backed bill to implement the 1996 WIPO Copyright Treaty and Performances and Phonograms Treaty. At the heart of that critique was an analysis of proposed new Section 1201 of the Title 17. This unprecedented provision would penalize the importation, manufacture or sale of software and equipment (including many currently lawful multipurpose devices) which are capable of being used to overcome technological safeguards applied to copyrighted works. In addition, it would impose civil and criminal liability on consumers who sought to avoid such safeguards in order to gain access -- for whatever purpose -- to protected works. We noted that although it would be codified in Title 17, Section 1201 would be no ordinary copyright provision; liability under the section would result from conduct separate and independent from any act of copyright infringement or any intent to promote infringement.

Unfortunately, H.R.2281 has now emerged from the Judiciary Committee with this so- called "anti-circumvention" language intact. We write today to express our appreciation that the Commerce Committee will conduct an independent inquiry into the issues surrounding proposed Section 1201, and to reiterate our opinion that this provision represents a short-sighted (if not backward-looking) effort to control the development and use of new technology by legislative fiat. Although the stated purposes of H.R. 2281 include the fostering of network- based digital information commerce, the legislation actually has the potential to frustrate the development of such commerce through excessive regulation.

So-called "black boxes" -- devices designed for the sole purpose of breaking electronic security systems to enable copyright infringement or theft of services -- already are illegal under U.S. law. Beyond that, it may well be desirable for the content industries and the electronics industry to agree upon and undertake to support generally applicable technological standards for electronic safeguards in the digital environment. But until such agreed-upon standards exist, sweeping federal legislation designed to regulate the market in multipurpose electronic devices, to require device manufacturers to respond to any and all safeguards initiatives unilaterally undertaken by anyone in content industry, and to impose a general regime of judicial supervision on the device design process, would represent a serious misstep in technology policy.

It is instructive to recall that throughout the 1980's, the motion picture industry sought to block the introduction of the VCR. In retrospect, we can see how the U.S. information economy (to say nothing of the movie industry itself!) would have suffered had this initiative succeeded. Today, it is impossible to predict all of the ways in which the regime envisioned in proposed Section 1201 would affect the well-being of U.S. high-tech industries in general, and development of electronic information commerce in particular. Indeed, it is the very difficulty of foreseeing such consequences which counsels against grand legislative gestures of the kind embodied in H.R. 2281. But some of the near-term consequences are clear. As currently drafted, this Section 1201 would:

• Effectively reverse the Supreme Court's 1984 decision in Universal v. Sony, which established the right of consumers to tape broadcast programming for time-shifting purposes, and of manufacturers to supply them with the equipment necessary for this purpose;
• Eliminate or chill the use of otherwise legitimate techniques of "reverse engineering" in the software development process;
• Significantly discourage research into the design and implementation of various computer security systems, including encryption; and
• Undermine efforts of ordinary citizens to protect their personal privacy against technological intrusions.
   

Of course, some of these adverse consequences could be avoided, at least in part, by building in various specific exceptions to compensate for the general prohibitions contained in a Section 1201. But we would counsel caution in using such an approach. The examples just cited are particular symptoms of a more general problem -- the difficulty of regulating dynamic new technologies on a prospective and categorical basis. For example, the "anti-circumvention" provisions of the Digital Millennium Copyright Act (S. 2037) do include an exception for software reverse engineering when undertaken to achieve interoperability. Notably, however, this exception is narrower and less flexible than the reverse engineering privilege which exists under current copyright law. While dealing with one current problem area, the exception fails to mitigate the general chill which Section 1201 would have on the development of new electronic technology.

Fortunately, as has been generally conceded in the debate over H.R. 2281, the WIPO treaties do not require the Congress to adopt such an approach. An alternative approach, which would satisfy the treaty mandates is available: the regulation of the misuse of "circumvention" technology." H.R. 3048, introduced last year by Representatives Rick Boucher and Tom Campbell, embodies this approach: Under it, individuals who engage in circumvention for purposes of committing or enabling copyright infringement would be subject to significant new civil penalties.

An important distinction should be drawn here between the approach to the regulation of circumvention of H.R. 3048, and that of H.R. 2281 itself. As has already been noted, H.R. 2281 not only attempts to impose a retrograde command solution on the proliferation of new technological capabilities; it also seeks (in its proposed Section 1201[a][1]) to make end-users of technologies (including students, computer users, and other consumers) liable for "circumvention" of technological safeguards in all circumstances, even when the purpose is one which constitute "fair" or otherwise privileged use under current intellectual property law.

Obviously, enactment of such a provision would threaten -- once again -- such important and economically significant consumer and commercial activities as home taping, software reverse engineering, and encryption research. More generally, it would enable a new model of information commerce, in which every consumer would be required to seek an electronic permission, and to secure an electronically-mediated license, for every use of information in a digital format: a so-called "pay-per-use" model of information distribution. Such a model, it should be noted, differs markedly from the one which now prevails in the analog environment, in which consumers typically pay to acquire a copy of the information work in question, and thereafter are entitled to make various use of its contents so long as they respect the intellectual property rights of a proprietor.

This new pay-per-use format for electronic information commerce, to which Section 1201looks forward, represents a radical departure from tradition. It may or may not be a desirable one, when viewed from the standpoint of promoting the "Progress of Science and useful Arts" --or that of maximizing the economic benefits of new electronic distribution media to all American consumers and businesses (both large and small). Many of us are skeptical about the merits of this approach, when compared to the more familiar one under which the United States has become the world's leading producer and exporter of information products. At the very least, however, its merits -- and demerits -- deserve to be closely scrutinized before any legislation
designed to promote it is enacted into law. Congress should not commit to new laws which will work a fundamental revision in the ways Americans sell and buy information before fully examining the consequences -- intended and unintended -- of such a departure. Choices about the policies which will govern the evolution of new information media as vehicles for commerce may be among the most significant facing the current Congress. We are pleased that the Commerce Committee will hold early hearings on the potentially far-reaching implications of H.R. 2281. And we look forward to assisting the work of the Committee in any way we can.


Sincerely,

Keith Aoki - Oregon
Tom W. Bell - Chapman
Stuart Biegel - UCLA
James Boyle - American
Dan L. Burk - Seton Hall
Margaraet Chon - Seattle
Julie Cohen - Pittsburgh
Rochelle Dreyfuss - NYU
Robert L. Dunne - Yale
Eric B. Easton - Baltimore
Tom Field - Franklin Pierce
William Fisher - Harvard
Michael Froomkin - Miami
John T. Gaubatz - Miami
Laura N. Gasaway - North Carolina

Llew J. Gibbons - Franklin Pierce
Paul Heald - Georgia
Cynthia Ho - Loyola (Chicago)
Peter Jaszi - American
Mary Brandt Jensen - Mississippi
Peter D. Junger - Case Western
Dennis Karjala - Minnesota
Ethan Katsh - Massachusetts
Robert Kasunic - Baltimore
Robert A. Kreiss - Dayton
David Lange - Duke
Lydia Loren - Lewis & Clark
Mark Lemley - Texas
Douglas Lichtman - Chicago
Jessica Litman - Wayne State
David Loundy - Texas
Charles McManis -Washington U
Stephen McJohn - Suffolk
Peter Menell - UC/Berkeley
Neil Netanel - Texas
Robert Oakley - Georgetown
Tyler T. Ochoa - Whittier
Phillip Page - South Texas
David Post - Temple
Ann Puckett - Georgia
Margaret Jane Radin - Stanford
Joel R. Reidenberg - Fordham
Jon Romberg - Seton Hall
Pamela Samuelson - UC/Berkeley
David Sorkin - John Marshall
Peter Swire - Ohio StateJane. Winn - Southern Methodist
Alfred Yen - Boston College

(affiliations provided for identification only)
 

cc:  all members of the Commerce Committee