IP: Congress engineering some poor legislation by Iper Dan

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

Posted at 7:11 p.m. PDT Saturday, April 11, 1998






Congress engineering some poor legislation


April 12, 1998


BY DAN G<mailto:dgillmor () sjmercury com>ILLMOR Mercury News Technology
Columnist


WHEN Ford Motor Co. puts out a new car, Chrysler buys one and takes it
apart to get a close look at Ford's latest innovations. This is part of a
process called reverse engineering, and it's one of the reasons consumers
end up with better products.


Now imagine a law that prohibited anyone except Ford employees from
dismantling the Ford car. Ridiculous? Something similar is moving all too
swiftly through Congress -- but the industry in this case is software.


The legislation is just one of several potentially damaging laws affecting
technology and civil liberties under consideration by our elected
representatives, who apparently have taken to heart the criticism they've
been receiving for taking too many vacations. Like Will Rogers, I'm
beginning to wonder whether they should make their holidays permanent.


One of the worst of the pending bills is HR 2281, which the House Judiciary
Committee has passed and sent to the floor of the lower chamber. Over the
objections of lawmakers who understand its implications -- such as Rep. Zoe
Lofgren, D-San Jose, and Rich Boucher, D-Va. -- the bill would make it
illegal to reverse-engineer software for any purpose.


The legislation's ostensible purpose is to comply with a draft treaty on
intellectual property in the digital age, proposed about 16 months ago by
the World Intellectual Property Rights Organization, a United Nations
agency. But the bill, a gift to large companies in the
intellectual-property business, goes beyond the draft language.


Almost no one endorses reverse engineering when the goal is to pirate
software. But this law makes no clear distinction between misuse of this
valuable tool and appropriate use, such as to come up with innovative new
products.


For example, a company called Accolade reverse-engineered the Sega
video-game box, against Sega's wishes, so it could write its own games to
run on the Sega. Sega unsuccessfully sued Accolade; consumers got the
benefits of more competition.


Industry trade groups, claiming no one should be worried that big companies
will stomp on little ones, need a reality check. This legislation is made
to order for the giants that would like nothing better than to squash
competition under the guise of protecting intellectual property.


If that isn't damaging enough, consider another pernicious effect of the
legislation. As the Association for Computing Machinery notes, it would
effectively gut the Fair Use doctrine in today's copyright law. Fair Use
allows researchers, scholars and others to reproduce small amounts of
otherwise protected material.


The ACM also believes the law would inhibit encryption research.
Encryption, by definition, is the scrambling of data so it can't be
understood by others. Make it illegal to unscramble code, which this bill
could do, and you might foil testing of encryption methods to see if they
work.




A better bill is HR 3048, sponsored by Boucher and Rep. Tom Campbell,
R-Campbell, among others. It balances the rights of copyright holders and
consumers of information far more fairly. Given the power of big business
to control legislation these days, however, the bill's very balance seems
to be a liability.


Not content with undermining innovation and research, Congress is also
considering a variety of new online censorship measures.


Last month, the Senate Commerce Committee approved a bill that has
accurately been dubbed ``Son of CDA,'' a reference to the so-called
Communications Decency Act of 1996. The Supreme Court, you'll recall,
flatly rejected the CDA's blunderbuss attempt to ban material deemed
harmful to minors as an unconstitutional attack on free speech.


That hasn't stopped the right wing from trying again. Sen. Dan Coats,
R-Ind., is the primary sponsor of legislation that purportedly deals with
some of the court's objections. In fact, it's probably just as
unconstitutional as its predecessor. Unlike the original CDA, it claims to
limit its controls to so-called commercial Web sites. Like the CDA, it is
absurdly vague, and would ultimately block adults from viewing legitimate
material.




I'm sure Coats and his allies know this, just as I'm sure many of them
genuinely -- and wrongly, in my view -- believe the Internet must be
censored to save children. The current betting holds that Coats' bill, or
one like it, will pass.


State legislators can't resist censorship, either. Across the country
they're enacting or proposing mini-CDAs and other laws to restrict access
or otherwise control the Net. History shows that state legislatures have
even less respect for the Constitution.


Local governments have joined the anti-liberty parade, too. Here in Silicon
Valley, the city of Mountain View has decided to put filters on its public
library computers. This misguided policy will make the city's wonderful new
library considerably less useful to its citizens.


You can disagree with politicians who pass laws that shred fundamental
liberties when they truly believe they're right. You should have nothing
but contempt for the ones who vote this way solely to inoculate themselves
against right-wing attack advertisements during campaigns, counting on the
courts to rule the laws unconstitutional. Sometimes it's unclear who's who.
But if you care about your right to read what you want, when you want, you
should oppose them whatever the motive.


In an age when political campaigns are controlled by attack ads and
politicians are controlled by big-money ``contributors'' who expect
something for their ``contributions,'' maybe it's asking too much to expect
intellectual integrity. Maybe citizens are too burned out by their jobs and
family lives to pay better attention.


But our basic freedoms are at stake here. If we won't take them seriously,
perhaps we shouldn't expect any better from the people we elect to
represent us.




Dan Gillmor's column appears each Sunday, Tuesday and Friday. Join an
online issues discussion by clicking on ``Forum'' on Dan's Web page
(<http://www.mercurycenter.com/columnists/gillmor>http://www.mercurycenter.


com/columnists/gillmor). Or write Dan at the Mercury News, 750 Ridder Park
Dr., San Jose, Calif. 95190; e-mail:
<mailto:dgillmor () sjmercury com>dgillmor () sjmercury com; phone (408)
920-5016; fax (408) 920-5917.






1997 - 1998 Mercury Center. The information you receive online from Mercury
Center is protected by the copyright laws of the United States. The
copyright laws prohibit any copying, redistributing, retransmitting, or
repurposing of any copyright-protected material.