More thoughts about S. 2037

[Terry Cullen <tcullen@seattleu.edu>]

On Thu, 18 Jun 1998, Terry Cullen wrote:

> S. 2037 is not quite as bad a bill as H.R. 2281, to my mind.  It at least
> acknowledges the fair use defense, ...

Laurel wrote:

Nope. Actually that provision (1201(d)) does not apply fair use principles
to the new access right. The new right created in 1201(a)(1) is not one of
those listed in Section 106 of the Copyright Act to which the limits in
Sections 107 to 120 (including fair use defense) apply. 

Right you are.  As I said, it acknowledges the fair use defense; however,
it doesn't specifically provide for a fair use a defense to a claim for
circumvention rather than a claim for copyright infringement.  Whether it
is constitutional or not may depend on whether the courts interpret it to
allow a fair use defense to a claim for circumvention.  If not, it may not
provide the proper balancing of rights to be upheld in a constitutionality
challenge. 

It seems to me that there's some room for a defense to a circumvention 
claim inherent in Sec. 1201(a).  That is, anticircumvention provisions only 
apply to circumvention of controls to access to works "protected under this 
title."  Arguably a suit based on circumvention would require a threshold 
determination of copyrightability.  Not everything published meets this 
standard, as is the case with numerous databases.  (The copyrightability 
standard currently requires some modicum of originality, so things like 
telephone book databases aren't copyrightable. )  However, as I said 
before, if any part of the work meets the standard, the anticircumvention 
provision seems to apply to every part, even public domain and other 
uncopyrightable material.  This bothers me a lot.

I think it is feasible that a court might try to read a fair use defense 
into the statute using Sec. 1201(a) and Sec. 1201(c), since the history of 
the Copyright Act establishes the intent to codify the common law balancing 
of rights said to be required under the Constitution.  Also, 1201(c) says 
nothing in the act shall affect "rights" under the title, so one might 
argue that fair use is not only a statutory right but also a common law 
right that can be applied to Sec. 1201.   Bottom line is, I think this will 
definitely need to be litigated if it passes in its current conception.

> and no criminal penalties for noncommercial circumvention.

Laurel wrote:

The criminal penalties do not apply to nonprofit libraries, archives or
educational institutions but I do not see any general provision excluding
all "noncommercial" circumventions from criminal liability. 

The criminal offense and penalties provision, Sec. 1204, provides for 
criminal penalties only for violation of secs. 1201 or 1202 "willfully and 
for purposes of commercial advantage or private financial gain."  I should 
have said "no criminal penalties for not-for-profit circumvention."  Same 
language as the Copyright Act used to contain (pre-Net Act) for criminal 
infringement.  (Earlier this year the Net Act amended the provision to 
allow criminal penalties for some not-for-profit infringement exceeding a 
certain retail value.)

Laurel wrote:

There seem to be some changes coming out of the Commerce committee in this
next week.  Let's hope that fair use gets a foot in the door.  If you are
concerned on this issue, call your Representative.  Especially if they are
on the Commerce committee.  Calls matter. 

Yes, please call.  I said this is better than H.R. 2281.  However, it's not 
a good bill.  Minimally, there needs to be an explicit fair use defense to 
circumvention, and a broader library exemption.  So far, most of these 
bills go well beyond the corresponding provisions of the WIPO Copyright 
Treaty; U.S. law does NOT need to be this restrictive to implement the 
treaty.

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