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CPT - NII Copyright - hr 2441
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INFORMATION POLICY NOTES
February 15, 1996
Proposed NII Copyright Law - HR 2441
- The Consumer Project on Technology today filed comments for
the record in the hearings on HR 2441, the so called
"NII Copyright Protection Act of 1995."
- This measure is supported by a well organized group called the
Creative Incentive Coalition (CIC), which includes a very large
number of big publishers, cable, TV and software companies and
trade groups, such as the Motion Picture Association of
America (MPAA), Microsoft, McGraw Hill, West Publishing,
the Information Industry Association, etc. They have hired
Podesta and Associates to run their trade group. The CIC
Web page is http://www.cic.org.
- The bill would create a new "transmission" right for
copyrighted materials, and impose very tough civil and criminal
fines for infringment of that right. It would also make it
illegal to dissmeminate software that defeated copyright schemes,
or if anyone takes any actions to defeat or remove "copyright
management" information. (Up to 5 years in prison, and a
$500,000 fine)
- The bill has been criticized by groups who say it does not
address traditional fair use of copyrighted materials,
and that it would set up a copyright police state, where
Internet service providers would be forced to monitor
electronic mail and other file transfers to prevent copyright
violations. A coalition that opposes H.R. 2441 is the Ditigal
Futures Coalition. The DFC includes consumer and library
groups, the national writers union, and several computer
firms, including Sun and 3com. The DFC is headed by
American University Law professor Peter Jaszi
(pjaszi@american.edu) and Adam Eisgrau (ame@alawash.org)
from the American Library Association. The DFC Web
page is http://guess.worldweb.net/dfc
Here are the CPT comments. jamie (love@tap.org, 202/387-8030)
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COMMENTS OF THE
CONSUMER PROJECT ON TECHNOLOGY
On H.R. 2441
NII Copyright Protection Act of 1995
Before the Subcommittee on Courts and Intellectual Property
of the
House Committee on the Judiciary
February 15, 1996
The Consumer Project on Technology (CPT) was created by
Ralph Nader in 1995 to address the consumer interest in public
policy issues related to new technologies. We maintain a Web
page on the Internet, at http://www.essential.org/cpt, which
provides additional information about the CPT and our activities.
The purpose of these brief comments is to express our
concerns about several provisions of H.R. 2441, particularly as
they relate to innovation in new information technologies,
personal privacy, and the public's rights under copyright fair
use doctrine.
H.R. 2441 is a product of the highly controversial "White
Paper" which was issued by Bruce Lehman, the Assistant Secretary
of Commerce and Commissioner of Patents and Trademarks. This
report, Intellectual Property and the National Information
Infrastructure, is considered by many to be an aggressive and
one-sided brief against the fair use doctrine and efforts to
promote interoperability in information technologies. It is also
a proposal that would have far reaching consequences regarding
personal privacy.
The legislation purports to "solve" problems presented by
the Internet, by creating a new digital "transmission right," in
Section 106(3) of title 17, the copyright Act. We are concerned
that this new legal right is too broad, and would do much more
than give copyright owners greater tools to reduce piracy of
copyrighted materials. The new "transmission right," when
combined with the very pointed comments of the White Paper about
the liability of Internet Service Providers (ISPs), would appear
to create a presumption that ISPs or employers would be liable if
persons transmitted copyrighted materials over the Internet.
This in turn will predictably lead to increased surveillance of
how persons use online systems. The ISPs will have incentives to
read private electronic mail, or monitor private ftp and http
sites on the Internet. Internet mail lists will likely become a
focus of much greater review and editorial control, to the
detriment of public discourse. One can imagine a virtual end of
privacy in electronic communications if ISPs are forced to police
every violation of the copyright laws.
If Congress does not want an end of privacy on online
systems, then it can solve this one problem. Congress can
plainly state that ISPs do NOT infringe on copyrights when their
customers simply use their accounts improperly, and that the ISP
would not be expected to engage in surveillance of any kind to
prevent copyright violations. This is particularly important
because the current appalling lack of privacy protection for
persons who use the Internet. If the Congress is not clear on
the issue of surveillance, it will be responsible for the
predictable problems that will occur.
We agree with those who believe it is premature to decide
that every form of digital transmissions would constitute
infringements of copyrighted works. The very one-sided
presentation of the fair use case law in Bruce Lehman's White
Paper obscures the importance of fair use in our daily lives. At
present people may, for non-commercial purposes, share
copyrighted materials in a variety of ways. The current version
of H.R. 2441 would appear to make illegal in an online
environment practices which are common today using older
technologies, such as using photocopy or fax technologies to send
a friend a copy of an article from a hard to find speciality
publication. While the Congress may eventually decide that the
Internet presents special problems that need to be addressed in
legislation, H.R. 2441 does not appear to attempt a balance
between the public's traditional rights under fair use and the
right of copyright owners to control the dissemination of
information. We share the concerns about fair use that were
expressed by the American Association of Law Libraries, the
American Library Association, the Association of Research
Libraries, the Medical Library Association and the Special
Libraries Association. It is regrettable that the Subcommittee
did not permit any of these groups to testify at the public
hearings on H.R. 2441.
The Section 4 provisions in the legislation, which pertain
to "Copyright Protection Systems and Copyright Management" are
quite broad, and raise a number of problems which have not been
resolved. By making it illegal to disseminate software or any
device, or provide any service that would
"avoid, bypass, remove, deactivate, or otherwise
circumvent, without the authority of the copyright
owner or the law, any processes, treatment mechanism,
or system which prevents or inhibits the violation of
any of the exclusive rights of the copyright owner"
(including the new right of transmission), H.R. 2441 would make a
very large number of legitimate and important software devices
illegal. Section 1202 of the bill would also make it a crime,
punishable by 5 years in prison or $500,000 in fines if one
modifies, removes or alters copyright "management information,"
regardless of the reasons why this was done. This is defined to
include such items as removing not only the name of the author of
the work, but such things as the terms and conditions for uses of
the work, plus other items.
This would seem to make a person a felon if they copied
information from the New York Times Web page, and sent it by
electronic mail to their mother. It would also impose very
severe penalties on persons engaged in very useful endeavors,
relating to software development, or persons who simply wanted to
make a copy of public domain court opinion from a commercial
database. This entire section of the bill needs much closer
study, particularly as it relates to activities that should be
allowable under fair use doctrine.
James Love
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036
Voice 202/387-8030
http://www.essential.org/cpt
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