IP: Copyright Bill Would Infringe on the Internet's Real

[Dave Farber <farber () central cis upenn edu>]

Gary Chapman
Director
The 21st Century Project
LBJ School of Public Affairs
Drawer Y, University Station
University of Texas
Austin, TX  78713
(512) 471-8326
Electronic mail: gary.chapman () mail utexas edu
http://www.utexas.edu/lbj/21cp/


INNOVATION


May 20, 1996


Copyright Bill Would Infringe on the Internet's Real Promise


By GARY CHAPMAN


When it comes to its policies for the Internet, the Clinton administration
is a major producer of paradoxes.


While positioning itself as the head cheerleader for the Internet as a
revolutionary medium of democratic communication, the administration has
repeatedly capitulated to lobbyists who want government regulation that
serves their clients' interests instead of the public interest.


We've already seen the administration accommodate itself to the
Telecommunications Reform Act of 1996, which passed in February -- an early
version of which Vice President Al Gore once accurately called "abhorrent
to the public interest." That new law is already accelerating massive
concentration in the telecommunications industry, and, of course, it also
contains the infamous Communications Decency Act, which outlaws "indecent"
communications on the Internet and is universally reviled among network
activists.


The latest assault on the character of the Internet is the National
Information Infrastructure Copyright Protection Act of 1995, a House bill
now under consideration. The bill is the legislative expression of a July
1994 "white paper" on intellectual property, prepared by the Commerce
Department's Information Infrastructure Task Force.


The bill is sponsored by the chairman of the House Judiciary Subcommittee
on Courts and Intellectual Property, Carlos Moorhead (R-Glendale). (This
committee also includes other Southern California members: Sonny Bono,
Xavier Becerra and Howard Berman. The text of the bill can be found at
http://www.tulane.edu/~aau/HR2441.html)


This copyright bill is the latest attempt of "copyright owners" -- meaning
publishers, film studios, software developers and recording companies,
among others -- to quell their panic over digital technologies. Remember
that film studios and TV networks tried to stop the sale of VCRs when they
were introduced, failing to predict that home video rentals would all but
rescue Hollywood.


More recently, a similar coalition has fought, unsuccessfully in the end,
to prevent the introduction in the United States of recordable digital tape
(DAT) and recordable erasable CDs. The Software Publishers' Assn. has also
waged an intense campaign against software copying, even though consumers
rejected copy protection schemes as annoying and cumbersome, and the
software industry still thrived.


But the Internet is a whole new ballgame. Not only is the Internet commonly
viewed as the future conduit for nearly all distribution of intellectual
property "software" -- including movies, music, software, text, images,
etc. -- but it is essentially one giant copying machine. By viewing
material on the Internet, users are copying digital bits from a remote
computer into their own computers.


If you are looking at this column on The Times' Web site, for example, you
have copied copyrighted material into your computer's random access memory.
The Times' freely offering the column online in effect grants permission
for anyone to view it. But if the paper charged a subscription fee and you
hadn't paid, the new copyright law would make viewing it a felony.


The proposed copyright law is described by its supporters as a "minor"
change to existing law, a "clarification" of copyright for digital
material. But public interest groups like the Digital Future Coalition --
which includes organizations such as the American Library Assn., the
Alliance for Public Technologies and the Electronic Frontier Foundation --
have called the bill a "maximalist" approach to copyright, which upends the
balance that copyright owners and users have enjoyed so far.


What would the bill do? Fundamentally, it would give copyright owners
control over "transmission" of digital information for which they own the
copyright, even if the user is storing the information temporarily in a
computer's RAM.


The bill would criminalize any distribution of licensed material beyond its
initial authorized use, which means that you couldn't send a paragraph of
this column to a friend in an e-mail message without paying for use or
risking prosecution. This is the equivalent of outlawing mothers sending
newspaper clippings to their daughters in the mail.


The bill would make Internet service providers criminally liable for any
unauthorized material that passes through their systems on its way to an
end user, in effect turning system administrators, ISPs, long-distance
carriers and local telephone exchange companies into Internet cops. The
bill is opposed by America Online, CompuServe, Prodigy, all the regional
Bell operating companies and the U.S. Telephone Association.


The bill envisions and would legislate the development of a digital
copyright management information scheme that would be attached to
copyrighted material like an electronic envelope and that would contain
whatever information is necessary to identify the copyright holder. If
these systems were made "smart" -- e.g., having the capability to "report
back" to copyright owners -- media companies could use automated techniques
to track down material on your hard disk, compromising privacy and
security.


Supporters of the bill have united in a group called the Creative Incentive
Coalition. (Times Mirror Co., which publishes this newspaper, is a member.)
They argue that the Internet will never live up to its potential unless
copyright holders can be assured of compensation for their contributions to
cyberspace.


Because digital technologies make possible "perfect" copies of things such
as movies, songs, newspapers, books and so on without any degradation in
their quality over multiple copies, "piracy" of such material is considered
a serious threat. The Software Publishers' Assn. estimates the software
industry loses $15 billion a year from illegal software copying. The United
States is even on the brink of a trade war with China over software piracy.


Public interest advocates say they have no objections to current copyright
protections or even reforms that take into account new technologies. But
they say any new law must include a clear reinforcement of the "fair use"
doctrine, which allows limited use of copyrighted material in educational
and some other situations; clear language that any enforcement be directed
at commercial pirates, not unwitting individuals; and an end to liability
for service providers.


The bill in Congress now, critics say, goes much too far. Combining the
copyright law with the Communications Decency Act, the Internet's potential
as a source of public education and free expression could be crippled. The
Clinton administration, which has done so much to advertise itself as a
group that "gets it" about new technologies, could instead turn out to be
the executioner of the Internet's real promise.


Gary Chapman is director of the 21st Century Project at the University of
Texas in Austin. His e-mail address is gary.chapman () mail utexas edu


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