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RE: A thought about H.R. 2281 - Anti circumvention 

On Thu, 28 May 1998, Kimberly Parker wrote:
> Unlike Rick Anderson, I have to admit that I haven't read the text of H.R.
> 2281, and I share a certain amount of his ambivalence.  But I have some
> questions.  Just because we make the breaking of the *barriers* to
> copying/accessing information illegal, does that make it any easier to
> detect violators?

Here's the relevant text:

Sec. 1201. Circumvention of copyright protection systems
      `(a) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL 
           PROTECTION MEASURES- 
         (1) No person shall circumvent a technological 
             protection measure that effectively controls
             access to a work protected under this title.
        [snip]
        `(3) As used in this subsection--
            `(A) to `circumvent a technological protection' means to
             descramble a scrambled work, to decrypt an encrypted
             work, or otherwise to avoid, bypass, remove, deactivate, or
             impair a technological protection measure, without the
             authority of the copyright owner; and
            `(B) a technological protection measure `effectively controls
            access to a work' if the measure, in the ordinary course
            of its operation, requires the application of information, or
            a process or a treatment, with the authority of the
            copyright owner, to gain access to the work.
        [snip]

 
> If it doesn't, what's the point?
> If it does, then why can't the law be written in such a way that the act
> of breaking the barriers isn't necessarily illegal, but does allow
> investigation of the use of the data that was gotten at.  If the use was
> fair use - no prosecution, if it wasn't -- it was illegal. 

That is exactly the type of language that the Boucher/Campbell bill (H.R. 
3048) proposes as an alternative to the approach in 2281.  Unfortunately,
the House Judiciary Committee has been very resistant to that approach.
The bill is being addressed by the Commerce Committee now.  (I've heard
that they'll have a hearing June 5th)  Perhaps more reasonable heads will
prevail there?  [Unabashed plug: Call your congressperson and support the
Boucher/Campbell bill.]

> Am I being extradorinarily naive here?  Is it a dangerous precedent to
> set, in terms of civil liberties, to have an action (breaking the
> barriers) set up a diminution in my right to be presumed innocent? 

You are not being naive.  The 2281 language of 1201(a)(1) prohibits
circumvention of a technological protection system without authority of
the copyright owner period.  There is no regard to the reasons for that
circumvention or the use of the material accessed. 

It also doesn't matter how much NON-copyrightable content is protected
along with the copyrighted material.  So if you break through a
technological barrier to get at public domain material, you can be liable
under this law if even just a bit of the content was copyrighted (and even
if you didn't even access that part of the content). 

I think of H.R. 2281's 1201(a)(1) anti-circumvention lanugage as a
"traveling law of trespass" - the information provider is given the right
to protect the information product it distributes in an analogous way to
protecting a house!  But with a house, there are even exceptions to the
law of trespass for reasons of necessity. 2281 doesn't provide such
exceptions. [Don't be fooled by the language of 1201(d) which says

    "`(d) OTHER RIGHTS, ETC., NOT AFFECTED- Nothing in this section 
        shall affect rights, remedies, limitations, or defenses to
        copyright infringement, including fair use, under this title"

The prohibition against circumvention is not related to copyright
infringement so saying that the new law doesn't affect fair use doesn't
say anything at all.]

Go to http://thomas.loc.gov/home/c105query.html to look at the text of the
bills yourself. 

If you don't like H.R. 2281 with its unqualified prohibition against
circumvention, pick up the phone and call your Representative. The push is
on right now.  Calls make a difference. 
  
Laurel

   Laurel Jamtgaard
   Policy Analyst to:
     Association of Research Libraries 
     Special Libraries Association
       202.296.2296  FAX:202.872.0884   laurelj@arl.org


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