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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 (pjaszi@american.edu) and Adam Eisgrau (ame@alawash.org) from the American Library Association. The DFC Web page is http://guess.worldweb.net/dfc

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.
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from James Love, Consumer Project on Technology P.O.B. 19367,
Washington, D.C. 20036, 202/387-8030 -- http://www.essential.org/cpt

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