1996-02-15
Craig A. Johnson
Now, for a slight change of pace. This is another *hot* Internet
issue which may be sizzling by the time the Senate gets around to
holding hearings on its companion bill.
Many of the problems dangerously parallel those of the CDA. Jamie writes:
The new "transmission right," when combined with the very
pointed comments of the White Paper about the liability of
Internet Service Providers (ISPs) ... will predictably lead to
increased surveillance of how persons use online systems. The
ISPs will have incentives to read private electronic mail, or
monitor private ftp and http sites on the Internet.
--caj
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Date: Thu, 15 Feb 1996 17:49:12 -0500 (EST)
From: James Love <•••@••.•••>
To: Multiple recipients of list <•••@••.•••>
Subject: CPT - NII Copyright - hr 2441 (fwd)
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INFORMATION POLICY NOTES February 15, 1996 Proposed NII Copyright Law
- HR 2441
- The Consumer Project on Technology today filed comments for
the record in the hearings on HR 2441, the so called
"NII Copyright Protection Act of 1995."
- This measure is supported by a well organized group called the
Creative Incentive Coalition (CIC), which includes a very large
number of big publishers, cable, TV and software companies and
trade groups, such as the Motion Picture Association of America
(MPAA), Microsoft, McGraw Hill, West Publishing, the Information
Industry Association, etc. They have hired Podesta and Associates
to run their trade group. The CIC Web page is http://www.cic.org.
- The bill would create a new "transmission" right for
copyrighted materials, and impose very tough civil and criminal
fines for infringment of that right. It would also make it
illegal to dissmeminate software that defeated copyright schemes,
or if anyone takes any actions to defeat or remove "copyright
management" information. (Up to 5 years in prison, and a $500,000
fine)
- The bill has been criticized by groups who say it does not
address traditional fair use of copyrighted materials,
and that it would set up a copyright police state, where
Internet service providers would be forced to monitor
electronic mail and other file transfers to prevent copyright
violations. A coalition that opposes H.R. 2441 is the Ditigal
Futures Coalition. The DFC includes consumer and library groups,
the national writers union, and several computer firms, including
Sun and 3com. The DFC is headed by American University Law
professor Peter Jaszi (•••@••.•••) and Adam Eisgrau
(•••@••.•••) from the American Library Association. The DFC
Web page is http://guess.worldweb.net/dfc
Here are the CPT comments. jamie (•••@••.•••, 202/387-8030)
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COMMENTS OF THE
CONSUMER PROJECT ON TECHNOLOGY
On H.R. 2441
NII Copyright Protection Act of 1995
Before the Subcommittee on Courts and Intellectual Property
of the
House Committee on the Judiciary
February 15, 1996
The Consumer Project on Technology (CPT) was created by
Ralph Nader in 1995 to address the consumer interest in public
policy issues related to new technologies. We maintain a Web
page on the Internet, at http://www.essential.org/cpt, which
provides additional information about the CPT and our activities.
The purpose of these brief comments is to express our
concerns about several provisions of H.R. 2441, particularly as
they relate to innovation in new information technologies,
personal privacy, and the public's rights under copyright fair
use doctrine.
H.R. 2441 is a product of the highly controversial "White
Paper" which was issued by Bruce Lehman, the Assistant Secretary
of Commerce and Commissioner of Patents and Trademarks. This
report, Intellectual Property and the National Information
Infrastructure, is considered by many to be an aggressive and
one-sided brief against the fair use doctrine and efforts to
promote interoperability in information technologies. It is also a
proposal that would have far reaching consequences regarding personal
privacy.
The legislation purports to "solve" problems presented by
the Internet, by creating a new digital "transmission right," in
Section 106(3) of title 17, the copyright Act. We are concerned
that this new legal right is too broad, and would do much more
than give copyright owners greater tools to reduce piracy of
copyrighted materials. The new "transmission right," when
combined with the very pointed comments of the White Paper about
the liability of Internet Service Providers (ISPs), would appear
to create a presumption that ISPs or employers would be liable if
persons transmitted copyrighted materials over the Internet. This in
turn will predictably lead to increased surveillance of how persons
use online systems. The ISPs will have incentives to read private
electronic mail, or monitor private ftp and http sites on the
Internet. Internet mail lists will likely become a focus of much
greater review and editorial control, to the detriment of public
discourse. One can imagine a virtual end of privacy in electronic
communications if ISPs are forced to police every violation of the
copyright laws.
If Congress does not want an end of privacy on online
systems, then it can solve this one problem. Congress can
plainly state that ISPs do NOT infringe on copyrights when their
customers simply use their accounts improperly, and that the ISP
would not be expected to engage in surveillance of any kind to
prevent copyright violations. This is particularly important
because the current appalling lack of privacy protection for
persons who use the Internet. If the Congress is not clear on
the issue of surveillance, it will be responsible for the
predictable problems that will occur.
We agree with those who believe it is premature to decide
that every form of digital transmissions would constitute
infringements of copyrighted works. The very one-sided
presentation of the fair use case law in Bruce Lehman's White
Paper obscures the importance of fair use in our daily lives. At
present people may, for non-commercial purposes, share copyrighted
materials in a variety of ways. The current version of H.R. 2441
would appear to make illegal in an online environment practices which
are common today using older technologies, such as using photocopy or
fax technologies to send a friend a copy of an article from a hard to
find speciality publication. While the Congress may eventually decide
that the Internet presents special problems that need to be addressed
in legislation, H.R. 2441 does not appear to attempt a balance between
the public's traditional rights under fair use and the right of
copyright owners to control the dissemination of information. We
share the concerns about fair use that were expressed by the American
Association of Law Libraries, the American Library Association, the
Association of Research Libraries, the Medical Library Association and
the Special Libraries Association. It is regrettable that the
Subcommittee did not permit any of these groups to testify at the
public hearings on H.R. 2441.
The Section 4 provisions in the legislation, which pertain
to "Copyright Protection Systems and Copyright Management" are
quite broad, and raise a number of problems which have not been
resolved. By making it illegal to disseminate software or any
device, or provide any service that would
"avoid, bypass, remove, deactivate, or otherwise
circumvent, without the authority of the copyright
owner or the law, any processes, treatment mechanism,
or system which prevents or inhibits the violation of
any of the exclusive rights of the copyright owner"
(including the new right of transmission), H.R. 2441 would make a very
large number of legitimate and important software devices illegal.
Section 1202 of the bill would also make it a crime, punishable by 5
years in prison or $500,000 in fines if one modifies, removes or
alters copyright "management information," regardless of the reasons
why this was done. This is defined to include such items as removing
not only the name of the author of the work, but such things as the
terms and conditions for uses of the work, plus other items.
This would seem to make a person a felon if they copied
information from the New York Times Web page, and sent it by
electronic mail to their mother. It would also impose very
severe penalties on persons engaged in very useful endeavors,
relating to software development, or persons who simply wanted to make
a copy of public domain court opinion from a commercial database.
This entire section of the bill needs much closer study, particularly
as it relates to activities that should be allowable under fair use
doctrine.
James Love
Consumer Project on Technology
P.O. Box 19367
Washington, DC 20036
Voice 202/387-8030
http://www.essential.org/cpt
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