December 16, 1997


by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—Information flow is a temperamental valve that can malfunction from tiny adjustments. Congress is now considering how to keep the valve in trim, respecting both the interests of copyright holders and the public’s need to copy information for archival and educational purposes.

A promising bill called the Digital Era Copyright Enhancement Act (H.R. 3048) tries to maintain the current balance as we surf ever further into the digital information stream. Librarians and researchers, led by a public-interest group called the Digital Future Coalition, are pressing Congress to pass this bill, which was introduced by Reps. Boucher and Campbell. These groups are making surprising headway against a bill supported by major entertainment and publishing firms, the WIPO Copyright Treaties Implementation Act (H.R. 2281/S. 1121) introduced by Rep. Coble.

WIPO stands for the World Intellectual Property Organization, which tries to harmonize laws in different countries concerning copyright and other rules regarding information. Both of the current bills before Congress claim to bring the U.S. in conformance with a recent WIPO treaty covering digital media and transmissions. But public-interest advocates accuse the Coble bill of going beyond WIPO to crush fair use and other important rights traditionally vouchsafed to researchers and teachers. Industry representatives say the bill’s provisions are necessary to prevent a hemorrhage of revenues from digitized information.

The difference between Coble and the research community’s choice, Boucher/Campbell, are subtle. But they tweak the valve in ways that profoundly affect how research and education will be conducted in the future. The backers of the Coble bill are aware of the public opposition and have toned down their bill dramatically from its earlier versions, but the differences between the bills are still notable.

The Coble bill depends on a relatively new form of intellectual property protection: an explicit license between buyer and seller. Anyone who has bought software is familiar with this “shrinkwrap license,” which can be surprisingly restrictive. Imagine buying a new car, starting the motor, and being presented with a sign that says “Don’t bring this in for repairs, whatever goes wrong—and don’t tell any of your friends what you think of the vehicle.” Many software shrinkwrap licenses are practically that restrictive.

It’s not clear whether shrinkwrap licenses are upheld by U.S. law; the legal record is mixed. But the Coble bill assumes that copyright holders will put in place something of that nature, which it refers to as “terms and conditions” for use of a work. Publishers are also trying to change the Uniform Commercial Code to explicitly legalize shrinkwrap licenses.

Give software companies, movie makers, and music studios the shrinkwrap license and they hardly need anything else to lock down intellectual property. A license could totally remove the “fair use” provisions that keep the information economy running—allowing colleagues in a scientific facility to share research, for instance, and teachers to give materials to their classes.

A license could also make it impossible for the publications to review products effectively (by refusing to let them reveal information about product operation) or for competitors to develop products with matching features. So we’re all much safer with Boucher/Campbell, which prohibits copyright infringement but explicitly upholds the fair use rights we currently have.

There are a few other heavy-handed aspects of Coble, such as the criminal penalties it imposes for copyright infringement. Up to now, infringement has been a matter for civil courts, and copyright holders have had to spend their own money instead of public funds to enforce their rights.

Coble even makes it a felony to build or market a device “primarily designed or produced” to undermine copyright protection. This would reverse the outcome of the 1984 Supreme Court case in which movie makers tried to prevent Sony from marketing devices that could copy a video from one tape to another. The determination of the Court—that there are valid reasons for copying a video tape—should apply to digital information as well.

A general scientific principle is at stake here: support for innovation. Radar detectors are openly bought and sold, even though their primary device is clearly to support an illegal activity—speeding. Even though speeding is much more dangerous to the public than copying a disk, we do not try to restrict technology in order to uphold the law. If devices that allow copyright infringement become illegal, how can copyright holders even find out whether their technical protection mechanisms work?

Current mechanisms to prevent copying are technically weak—for instance, the digital watermarks added by one commercial product to online images were recently reported to be vulnerable to tampering. But if backed by law, such mechanisms could prevent individuals and libraries from making backups of precious holdings. Jon Noring, an electronic publisher, writes “A copyright owner can prevent Fair Use or other personal use copying simply by adding a security measure to a document. [Coble] gives the copyright owners a back door to eliminate Fair Use and the allowance of Section 117, a gross violation of the intent of the U.S. Constitution regarding copyright law.”

Section 8 of Boucher/Campbell is superficially similar, adding provisions to copyright law to prevent people from overriding copyright protection mechanisms. Richard Stallman, noted proponent and developer of free software, opposes this section. But it is much less harsh because it applies only to people “facilitating or engaging in an act of infringement” and calls only for civil penalties. Boucher/Campbell also lets libraries and other owners to make three copies.

It also allows displays of copyrighted materials for educational purposes by government and non-profit institutions. Thus, the rights traditionally given to classes are updated to cover distance learning, a service that is expected to burgeon over the next decade.

Boucher/Campbell isn’t perfect, but it breaks off a major chunk of the intellectual property problem and carefully preserves it for the future. Only through continued debate and information sharing—a model for intellectual property use—will the various parties find compromises in this complex area.

Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 International License.

Editor, O’Reilly Media
Author’s home page
Other articles in chronological order
Index to other articles