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January Law Bulletin article
Forwarded message:
>From jwne@astro.ocis.temple.edu Mon Jan 12 00:58:41 1998
Date: Mon, 12 Jan 1998 00:58:41 -0500 (EST)
From: "David P. Dillard" <jwne@astro.ocis.temple.edu>
To: Ann Okerson <aokerson@pantheon.yale.edu>
Subject: January Law Bulletin article
Message-ID: <Pine.OSF.3.96.980112005051.30673G-100000@tornado.ocis.temple.edu>
MIME-Version: 1.0
Content-Type: TEXT/PLAIN; charset=US-ASCII
David Dillard of Temple University forwarded this to the list. We agree
with him that it offers an important perspective on both copyright
legislation (revision), particularly important new user-friendly bills
that have been introduced in Congress and copyright's intersection with
licensing. The work is reproduced here with permission of the author,
David Loundy.
David writes: If possible, please mention that anyone who wishes to
subscribe to my listserve can do so by sending the message "subscribe" to
Loundy-request@NETural.com.
The Liblicense-l Moderators
---------- Forwarded message ----------
Date: Sun, 11 Jan 1998 22:08:34 -0500
From: "David J. Loundy" <David@Loundy.com>
Subject: January Law Bulletin article
Published in the Chicago Daily Law Bulletin, January 8, 1998 at page 5.
------------------------------------------------------------------------
The good, bad, ugly of copyright law rewrites.
Copyright 1998 by David Loundy
------------------------------------------------------------------------
Congress is actively trying to update the U.S. copyright law to account
for digital technology, in part because of a deep-seated need to regulate,
and in part to bring the law in line with the requirements of a treaty
sponsored by the World Intellectual Property Organization, the WIPO
Copyright Treaty). As is often the case, some pieces of legislation are
better than others. Also, as is frequently the case in the high-tech
context, the legislation that leaves something to be desired is being
signed into law.
To begin on a positive note, one of the best pieces of proposed digital
technology legislation I have seen in some time is H.R. 3048, the "Digital
Era Copyright Enhancement Act" proposed by Representatives Rick Boucher
(D-Va) and Tom Campbell (R-Ca). The legislation has merit on several
grounds
* 1. It shows an understanding of the technology;
* 2. It shows an understanding of the law and how it applies to the
technology; and
* 3. It attempts to strike a balance between the rights of intellectual
property owners and intellectual property users.
The Digital Era Copyright Enhancement Act begins by addressing the issue
of "fair use" of a digital work. The legislation offers that the
technology used for transmitting a copyrighted work should be irrelevant
for determining whether that transmission is a fair one. The technological
means of initially performing, displaying or distributing a work should
also be irrelevant in determining whether a subsequent use of the work is
a fair one. A controversial stance the legislation takes, discussed in
more detail later in this article, is that a fair use analysis should not
be affected by whether a digital work is protected from reproduction by
technological measures. Similarly, the legislation would allow an
expansion of the use of copyrighted works for classroom teaching, even if
the "classroom" constitutes remote locations comprising a "distance
learning" environment.
The bill also contains provisions for libraries and archives-- expanding
the ability to make copies of digital works to preserve such works. The
legislation particularly notes that some copies may be needed as a result
of storage and display technologies becoming obsolete.
Another provision contained in the proposed legislation is one that allows
preservation of the "first sale" doctrine for digital works. The first
sale doctrine states that a copyright holder can control the first sale of
a work, but not any subsequent transfers of a particular copy of a work.
However, the exclusive right to reproduce a work is not affected. This
allows businesses such as used book and CD stores to operate-- the
copyright holder cannot prevent the subsequent distribution of a work
after the first sale of a particular copy. In the digital context,
however, computers work by making copies. If you have a copy of an
electronic book on the hard drive of your computer, and you e-mail it to
someone, you have made a reproduction of the work-- a right still reserved
to the copyright holder-- and have not just made a transfer of the work as
allowed under the first sale doctrine.
The proposed legislation addresses this issue sensibly by allowing you to
make a copy by transmitting a work to another, but only if you destroy
your copy of the work at "substantially" the same time.
The bill also clears up an issue I have been concerned about for some
time. Because the use of an electronic work requires that a copy be made,
any use of an electronic work is a potential infringement. Because this is
an obviously silly outcome, in the 1970s, the National Commission on New
Technological Uses of Copyrighted Works proposed Section 117 of the
Copyright Act to allow certain copies of computer programs to be made as
may be necessary to use or preserve such works. Although Section 117 was
adopted, it covers "computer programs," and arguably dose not cover data.
Thus, although you can copy your word processor in order to use it, you
may still be infringing by viewing someone else's documents with your word
processor.
The Digital Era Copyright Enhancement Act broadens Section 117 to apply
clearly to all digital works.
Perhaps the most striking aspect of the proposed legislation is that it
would overturn cases such as Pro-CD v. Zeidenberg, 1996 U.S. App. LEXIS
14951 (7th Cir. 1996), thus bringing the 7th Circuit in line with the rest
of the country in limiting "shrink-wrap" licenses. The bill provides that
non-negotiable contracts which attempt to limit use of non-copyrightable
material, such as the listings of telephone numbers at issue in Pro-CD,
would be specifically preempted. The same preemption would apply to any
non-negotiable licenses which attempt to restrict a user's rights to use a
copyrighted work as may be specifically allowed under provisions of the
Copyright Act, such as the fair use provision. This provision would also
throw a wrench into the proposed Article 2B to the Uniform Commercial Code
which would support such non-negotiated licenses.
Another provision of the bill would implement a requirement of the WIPO
Copyright Treaty that requires signatories to have in place legislation
which makes it illegal to bypass digital copyright protection management
systems. This requirement has been very controversial, which brings us
back to the fair use discussion.
Some people argue that an additional bypass prohibiting provision is
unnecessary under the U.S. Copyright Act, and that adequate protection is
already provided by the current U.S. Copyright Act.
Others disagree, and have proposed strict prohibitions against any
attempts to bypass digital copyright protection schemes. H.R. 2281,
proposed by Representatives Coble, Hyde, Conyers and Frank, contains a
blanket prohibition against bypassing protection schemes. Such a blanket
prohibition risks removing the ability to make fair use of a digital work,
as is specifically provided for in the Constitution. The inability to
bypass protection schemes would also make it impossible to
reverse-engineer software to develop new products based on an existing
one. It also could potentially require a payment in order to so much as
read an electronic work-- with no allowance for use of such a work for
teaching or scholarship. For these reasons, H.R. 2281 has been opposed by
60 law professors in a letter sent to Representative Coble.
The Digital Copyright Enhancement Act also prohibits bypassing copyright
protection schemes, but, unlike the Coble bill, would allow protection
schemes to be bypassed if the purpose of the circumvention does not amount
to an infringement. Both bills also allow a court to reduce or remit
damages if a violation is found to be "innocent."
Two bills are also pending which would address system operator liability
for infringements that occur on or through a provider's system. H.R. 2181,
the "On-Line Copyright Liability Limitation Act" is a short statute which
would provide immunity from claims of copyright infringement where the
service provider merely transmits or provides access to infringing
material where the provider does not know of the presence of infringing
material. The legislation sets forth a number of other requirements for a
service provider to remain free from liability, such as not receiving
financial benefit for any particular act of infringement. Such a provision
would strongly advise against a service provider imposing "traffic
charges" where any traffic, some of which might be infringing, results in
extra income for the service provider. The bill also eliminates liability
where the provider does not know of the presence of infringing material,
and provides some immunity from claims based on the provider's removing
infringing material once the provider has become aware of its presence.
Unfortunately, the draft legislation does not adequately flesh out this
provision, and will inevitably result in litigation.
The other bill to address service provider liability does provide more
detail for when a service provider has notice of infringements ocurring on
the provider's system-- it has an extensive provision for a service
provider's handling infringement claims. Unfortunately, the provisions of
Senator Ashcroft's "Digital Copyright Clarification and Technology
Education Act of 1997" (S. 1146) require that any material which a
copyright holder asks to have removed be the subject of a copyright
registration or at least subject to an application for a registration-- a
requirement that is otherwise largely unnecessary, and is discouraged by
international convention.
The final piece of copyright legislation, the No Electronic Theft Act (The
NET Act-- H.R. 2265) was, unfortunately, recently signed into law. The Act
expands criminal penalties for non-profit copyright infringement. The Act
was intended to close the "LaMacchia Loophole" which came to light in the
attempted prosecution of a college student for running a computer bulletin
board system intended for the distribution of pirated computer software
(U.S. v. LaMacchia, No. 9410092-RGS (D. Mass. Dec. 28, 1994)). The
prosecution in that case failed because charges were brought under the
Wire Fraud Statute, rather than under the Copyright Act. The court held
that because the bulletin board operator was not profiting from any
infringements, the requirements for a fraud conviction were not present.
Under the NET Act, non-commercial copyright infringement of a sufficient
dollar value would now be a criminal act. Thus, copyright holders could
now ask the government to bear the cost of prosecuting infringers instead
of using the already-available remedies provided by the Copyright Act. In
other words, the No Electronic Theft Act closes a loophole that does not
really exist.
Unfortunately, when put into an Internet context, the NET Act creates a
potential chilling effect and upsets the Constitutional balance provided
by the Copyright Act. The Internet works, in essence, by making copies. If
I post something to usenet news, I may create a million copies of whatever
I transmit. If I post a quote from a newspaper article, the use of which I
believe to be a fair one and thus protected from liability, but if that
use is not actually fair and the value of the work which I post is even a
fraction of a cent, arguably I could be subject to up to a year in jail
under the terms of this new law. This is clearly a stiff deterrent to
impose as a result of a failed attempt at a creative prosecution in a case
where another remedy was already readily available.
I have long claimed that the Copyright Act contains some legitimate holes
to be filled when the law is applied to a digital context. Unfortunately,
too much of the resulting legislation is reactionary and poorly
considered. While the Digital Copyright Enhancement Act is a refreshingly
informed and balanced attempt to fill some of these holes, why is it that
Congress always seems to be most excited about mistakes such as the NET
Act?
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