RE: A thought about S. 2037--anticircumvention & fair use

[Terry Cullen <tcullen@seattleu.edu>]

S. 2037 is not quite as bad a bill as H.R. 2281, to my mind.  It at least
acknowledges the fair use defense, has an innocent violator/library
exemption, and no criminal penalties for noncommercial circumvention.  The
big problem is that if there's legal protection for anticircumvention
measures, they will proliferate, and it will hurt the public, because
little folks don't have the resources to deal with anticircumvention
measures to make fair uses of materials in any case. 

Just as worrisome to me as the fair use problem in some of these bills is
that anticircumvention measures allow companies to block others from
public domain materials, to which they have no right.  For example, say a
state contracts with a private publisher to publish the state's case law ,
and it is then published only in electronic form.  If the publisher then
adds anticircumvention measures to the electronic form, that publisher
effectively defeats public access to public domain materials.  Even though
only the portions of the database that meet the copyrightability standard
are protected by copyright, and under current law, any other publisher who
wants to use the public domain portions of the database is free to do so,
the anticircumvention bills would make it illegal to get to the materials.

Add to that scenario the new public/government publication alliances
(e.g., NTIS now contracts out a number of publications, consisting of
materials written by government employees, to the private sector.)  So,
will we get more and better databases?  I doubt it.  I think we will get
more control by a few large publishers who will snatch up all the public
domain materials and lock them down. 

Just my two cents.

Terry Cullen
Electronic Services Librarian
Seattle University Law Library
950 Broadway Plaza
Tacoma, WA  98402-4470
253-591-7092