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
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 ([email protected]) and Adam Eisgrau ([email protected]) from the
American Library Association. The DFC Web page is
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.
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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