IP: NYT Digital Commerce on U.S. Copyright Law

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

While a bit old, it is insightful.


Dave




  January 19, 1998




  DIGITAL COMMERCE / By DENISE CARUSO


  A Tough Stance on Cyberspace Copyrights




  As Congress prepares to reconvene later this month,
  cyberspace law experts are bracing for yet another battle
  with the Clinton administration over its dogged pursuit of
  restrictive copyright legislation for the digital age.


  The administration contends that the bill being considered
  -- the "World Intellectual Property Organization Copyright
  Treaties Implementation Act" -- is necessary both to comply
  with international copyright laws and to give copyright
  holders, most notably large media and software companies,
  the legal power to protect their property from illegal
  electronic distribution.


  But opponents, including a legion of industry and public
  interest groups, say the proposed law is much more
  restrictive than the treaties require and would give nearly
  absolute control over digital information to copyright
  holders.


  The most profound implications are likely to come from the
  administration's provision for what is called
  "anti-circumvention," which makes it illegal, under any
  circumstances, to crack a copy-protection technology. Anyone
  manufacturing, selling or using any device that is capable
  of circumvention, no matter what the reason, would be
  engaging in a criminal act.


  "What these prohibitions would do is impose a new kind of
  liability even in situations of fair use," said Peter Jaszi,
  a law professor at American University in Washington and
  co-founder of the Digital Future Coalition, a group seeking
  to preserve copyrights in cyberspace.


  In copyright terms, "fair use" describes how someone can use
  or excerpt another's copyrighted work. For example, Jaszi
  said, it is now legal to "decompile," or take apart, someone
  else's software code to analyze it so that products will
  work together -- a provision that safeguards against
  monopolistic practices.


  But under the proposed law, if the owner had used
  copy-protection technology on that code, it would be illegal
  to circumvent that protection even though the information,
  by law, should be available.


  Many products on the market would qualify as circumvention
  devices. These include software that allows systems managers
  to gain access to computers when users lose their passwords
  and any device used to test the strength of computer
  security -- products that cannot be tested without trying to
  break their protection technology.


  The anti-circumvention provision would also enable copyright
  owners to dictate non-negotiable terms in contracts for how


  others could use their information -- terms now governed by
  the federal Copyright Act, not by contract law.


  "This raises some fundamental jurisdiction issues" between
  state law, which often governs contracts, and federal law,
  said Mark Radcliffe, an Internet law specialist and a
  partner at the law firm of Gray, Cary, Ware & Freidenrich in
  Palo Alto, Calif.


  Opponents have proposed alternative legislation intended to
  re-establish in cyberspace the existing tenets of copyright
  law. The alternative bills prohibit circumvention of
  copyright protection for certain reasons but do not outlaw
  circumvention devices.


  The Digital Future Coalition has posted a side-by-side
  comparison of the bills on its Web site.


  The coalition was founded in reaction to the report
  Intellectual Property and the National Information
  Infrastructure, issued in 1995 by the U.S. Patent and
  Trademark Office and largely written by its commissioner,
  Bruce Lehman. Before joining the Patent Office in 1993,
  Lehman, a lawyer, represented the motion picture,
  telecommunications, computer software and broadcasting
  industries.


  Although the report was widely criticized as too restrictive
  and favorable to the interests of Lehman's former clients, a
  bill based on its recommendations was introduced in 1996. It
  failed in committee, but the Patent Office had already
  shaped the rejected bill into international treaty
  amendments and submitted them to the World Intellectual
  Property Organization in December 1996.


  The organization's delegates blunted the U.S. proposals
  considerably, including those regarding circumvention
  devices. And opponents say the administration's domestic
  proposal is much more stringent than the treaties require.


  A letter of protest from 50 law professors to Rep. Howard
  Coble, R-N.C., who introduced the intellectual property bill
  on the administration's behalf, stated that the organization
  had "conclusively rejected the proposition" that
  anti-circumvention language had to prohibit devices.


  John Scheibel, vice president and general counsel for the
  Computer and Communications Industry Association, shares the
  professors' dismay. The administration, he said, is "trying
  to accomplish domestically what it failed to accomplish
  internationally, and what it already failed once to
  accomplish domestically."


  Lehman is adamant that prohibiting circumvention devices and
  other new restrictions are "a very important part of the
  future commercial success" of the copyright industries in
  cyberspace.


  But the law professors protesting his bill say that today's
  copyright laws strike a balance between protecting
  commercial interests and encouraging new creations. In doing
  so, they have encouraged education, research and individual
  creativity, "as well as the growth of copyright industries
  which today dominate the international marketplace in
  information products."


  Their letter continues, "We should not rush to drastically
  alter that tested system in ways that might produce
  unsought, unforeseen and unwelcome consequences."






   DIGITAL COMMERCE is published on Mondays.
   Copyright 1998 The New York Times Company