IP: your right to read -- from RISKS -- important

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

Date: Thu, 7 May 1998 23:27:53 -0400
From: "Simson L. Garfinkel" <simsong () vineyard net>
Subject: Defeat New Copyright Legislation


[This is Simson's article in *The Boston Globe*, 7 May 1998.  PGN]


Two bills that are up for a vote in the House of Representatives could
seriously jeopardize the right of Americans to read in the next century. The
backers of these bills say that the legislation is necessary to protect the
interests of creative individuals and publishers in the digital age.  But
the legislation goes further by allow publishers to repeal the "fair use"
provisions of today's copyright law and creating a whole new category of
intellectual property.


The first bill, strongly backed by the Clinton Administration, is the "WIPO
Copyright Treaties Implementation Act," (H. R. 2281). This bill is designed
to implement sections of the World Intellectual Property Organization treaty
that was adopted back in December 1996. The bill creates a new kind of crime
in US law, the crime of "circumvention." It's a kind of crime that one would
expect in George Orwell's 1984, rather than in the America of the next
century.


H.R. 2281 is being supported by big publishing interests including Time
Warner, Viacom, the Motion Picture Association of America, and Microsoft.
These organizations are terrified by the way computers and digital networks
make it easy to copy books, songs, videos and computer programs. For years
these groups have tried to stop illegal copying with copy-protection
systems. H.R. 2281 would make it a crime to subvert these systems for any
purpose whatsoever.


The problem with this legislation, says Adam Eisgrau, Legislative Counsel of
the American Library Association's Washington Office, is that many
publishers are likely to use copy-protection systems to restrict activities
that are otherwise lawful.


For example, many web sites on the Internet today as you to register with
your name and e-mail address before you can view the information that they
contain. A substantial number of people bristle at this notion, and they
have figured out ways to circumvent the registration process. Under the
legislation, these people could be sued and awarded $200 to $2,500 in
statutory damages for each web page that they viewed.


And its not just consumer groups that are upset about the legislation. As it
currently exists, the legislation would make it a felony for engineers to
open up competing products and see how they work--- "something that is
essential for achieving interoperability in the industry," says Lowell
Sachs, the government affairs representative of Sun Microsystems. "So far,
the House has failed to focus upon the very real threat that its actions
could pose to competition and innovation in the United State."


The criminal provisions of H.R. 2281 apply even if the offender is legally
entitled to the information that is under copyright management control. For
example, the Supreme Court has ruled that individuals have a right to record
movies off the air and view them at a later time. Nevertheless, the film
industry doesn't want us to make our own tapes---they want us to buy
pre-recorded tapes. In the future, the film industry might create a new
copyright protection system that prevents home taping off the Internet
unless a person pays an additional fee. Under the proposed legislation, a
person who circumvented this new copy-protection system and made their own
legal home copy would nevertheless be guilty of circumvention, and
potentially subject to a fine of $500,000 and 5 years imprisonment for the
first offense.


The author of the bill "are very clever," says Adam Eisgrau. "They don't
repeal the legal basis of fair use," which would create a huge political
outcry. Instead, the legislation "creates a new law which makes fair use
impossible to exercise, unless the appropriate price is paid." And that's
not Fair Use at all.


The second bill that should give lawmakers pause is H.R. 2652, the
"Collections of Information Antipiracy Act." This law, if passed, would give
legal protection to the contents of databases over and above what is
provided by today's copyright law.


The database law finds its genesis in a 1991 Supreme Court decision, Feist
Publications, Inc. v. Rural Telephone Service Co., in which the Court ruled
that the factual information in a telephone white pages---a large database
of names, addresses and phone numbers---cannot be copyrighted. This decision
is one of the key factors responsible for the proliferation of "white pages"
services on the Internet like Switchboard.COM.


H.R. 2652 would basically overturn the Feist decision, making it a crime to
extract date from a "collection of information" and use it in a way that
harms the real or potential economic interest of the collection's owner. One
of the fundamental problems with this bill, says the EFF, is that there's no
limit to the kind of information that can receive protection once it is put
into a databank. In particular, government information and information
that's in that's already in the public domain could be dropped into a
computerized databank and then receive new, copyright-like protections. And
the Act doesn't have any exemptions for "fair use."


So how could all of this impact on our right to read? Just ask Richard
Stallman, founder of the Free Software Foundation. In his story "The Right
To Read," Stallman argues convincingly that new restrictions on information
will ultimately force people to pay for every book and article that they
read, whether they are at home, at work, or at school.


Stallman's story is a science fiction parable in which one college student
risks imprisonment by lending his computer to his girlfriend and telling her
his password---in effect, giving her access to books that he has licensed
for himself. "Dan knew she came from a middle-class family and could hardly
afford the tuition, let alone her reading fees. Reading his books might be
the only way she could graduate," Stallman writes. You can find the entire
story at http://www.gnu.org/philosophy/right-to-read.html


Indeed, if you want find out more about these issues, there's no better
place to turn than the Web. A group opposed to the legislation called the
Digital Future Coalition has put together a website at http://www.dfc.org/
explaining the problems. Meanwhile, a group of publishers have banded
together and created their own competing group, the Creative Incentive
Coalition. You can find its website at http://www.cic.org/. Finally, you can
download the full text of these bills from the Library of Congress's Thomas
system at http://thomas.loc.gov/.


But hurry, while you still have a right to read.