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A question regarding H.R. 2281 

	After reading the copy of Simson Garfinkel's Boston Globe article
that David Dillard thoughtfully posted to this group, I finally got up the
gumption to seek out and read the full text of H.R. 2281.  Having done so,
I'm left arguing with myself (quietly, of course, so as not to alarm my
staff).  And not being able to settle this intrapersonal argument very
satisfactorily, I'm posting it publicly, hoping that doing so won't cause
me to be run out of the profession on a rail.  Can anyone help me sort
this out? 

BAD, TROUBLEMAKING, UNPROFESSIONAL RICK:  Let's say I'm a publisher who
makes his living by selling access to information to which I own the
copyright.  Given the extreme difficulty of detecting (let alone
prosecuting) copyright infringements in the digital domain, should I not
expect that a) I'd be allowed to put barriers between my information and
those who wish to copy it illegally, and b) that people would be legally
enjoined to respect those barriers? 

GOOD, PROFESSIONAL, ALA-COMPLIANT RICK:  Yes, of course you can erect
barriers and use them to let paying customers in and exclude others. 
However, if someone overcomes your barrier and makes fair use of your
copyrighted information, you can't expect to hold that person criminally
liable.  After all, you haven't been injured in any way -- the barrier
exists not for its own sake, but to protect your copyright.  If the person
in question hasn't breached your copyright, where's the harm?  If he or
she makes *unfair* use of the info, then a crime has been committed.  But
that's based on existing law with which everyone agrees.  The problem is
with making the integrity of the barrier itself legally enforceable. 

BAD RICK:  But if the barrier isn't legally enforceable, what protection
do I actually have?  Is copyright law going to protect me?  Give me a
break -- barring blatant, large-scale and highly profitable infringements,
no one is going to get caught, and even if someone is I'll go broke trying
to prosecute. If I can't have any control over the information I create,
there's very little point in me investing much time or energy in doing so. 
I've got a family to feed, and so do my employees. 

GOOD RICK:  Okay, granted, you need to be able to protect your copyrighted
work.  But why do you need a new law that can be brought to bear on people
who are making fair use of it?  Again, H.R. 2281 doesn't protect your work
directly -- all it protects is the integrity of the barriers you put in
front of it.  You don't object to fair use, do you?  Besides, you've been
publishing for twenty years now -- why are you suddenly so uptight about
this? 

BAD RICK:  I need a new law because copyright law isn't a sufficient
deterrent.  Nor has it ever been -- when I published physical books I
could count on the difficulty of wholesale reproduction and distribution
to discourage piracy.  That real-world barrier is no longer there; now
that my product is available on the internet, wholesale piracy is absurdly
easy.  The only hope I have is a law that will discourage people from
figuring out ways to scale the walls I build around my property.  And I'm
uptight about this now because market forces make it necessary, for the
first time, that I make my proprietary information available in an
electronic milieu where there seem to be few rules and no enforcement of
what few rules there are.

GOOD RICK:  Come on, Mr. Paranoid.  How many of your readers have the
expertise necessary (not to mention the inclination) to hack past a
password screen? 

BAD RICK:  I don't know.  That's just the problem.  The Pentagon can't
seem to keep 14-year-olds out of its computer system, so I'm not sure how
much I should rely on the ignorance (or, sadly, the integrity) of my
readers for copyright protection.  I need H.R. 2281 so that when someone
breaks down the walls that I've built or helps others do so, I can make
him stop. 

(EXEUNT OMNES) 

So anyway, after this schizophrenic episode I'm still just as ambivalent
as ever.  (And I haven't even read through H.R. 2652 yet -- I'm scared
to.)  Am I the only one who sees this as less than an open-and-shut case? 

----------------------
Rick Anderson
Head Acquisitions Librarian
Jackson Library
UNC Greensboro
1000 Spring Garden St.
Greensboro, NC 27402-6175
PH (336) 334-5281
FX (336) 334-5399
rick_anderson@uncg.edu
http://www.uncg.edu/~r_anders

"My music is not modern; it is only badly played."
                  -- Arnold Schoenberg


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