New Copyright Concerns 1997

Date: Wed, 30 Jul 1997 17:44:52 -0400
From: Declan McCullagh <declan@pathfinder.com>
To: Interesting People List

If you give your dad a "free" copy of Microsoft Word, you'll be guilty of a Federal felony, at least under some of the bills that have recently been introduced in Congress. I'm still reading through them, but here's what I've gleaned...

Much of the debate will center around the so-called "LaMacchia Exemption," which basically means that non-profit copyright infringing is not a crime. It is, however, already a civil offense -- as the SPA is always eager to demonstrate. I wrote about this recently:

http://cgi.pathfinder.com/netly/opinion/0,1042,1107,00.html

HR2265: Introduced by Rep. Bob Goodlatte on July 25, the "No Electronic Theft Act" would eliminate the LaMacchia Exemption. If you give pirated software to a friend (exchanging "anything of value" including "other copyright works"), beware. For the first offense, assuming the software is worth at least $5,000, you get three years in the Federal pen. If you make more than ten total pirated copies, you get six years:

http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2265:

HR2180: Internet services generally would not be liable for their customers' copyright infringements, under this bill introduced on July 17 by Rep. Coble and Rep. Henry Hyde. Called the "On-Line Copyright Liability Limitation Act," it's what ISPs have been demanding for years. Watch major copyright owners like Microsoft frown at this one. Nobody in the Senate has introduced companion legislation yet; the Judiciary Committee had a hearing on ISP liability scheduled for yesterday but it was cancelled due to Justice Brennan's death.

http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2180: HR2281: Arguably the most controversial of the copyright bills introduced so far, this legislation that was introduced yesterday would enact the World Intellectual Property Organization copyright treaty the U.S. signed last December. Problem is, it may go far beyond what the treaty requires. The bill bans "technology" (including both hardware and software) that has few uses other than "circumventing a technological protection measure."

It could impact encryption. "Circumvention" is defined as "to descramble a scrambled work, to decrypt an encrypted work." (What does this mean for cryptanalysts?) It also restricts removing "copyright management information" that includes titles, author's name, and copyright notice. Violators would be subject to civil penalties or criminal prosecution. If you "circumvent" protection or remove copyright info "for purposes of private financial gain," you'll face up to a $1,000,000 fine and 10 years in Federal prison.

That's serious stuff. And it raises some interesting questions: what if I include a Reuters article in a newsletter I sell, and delete the copyright notice? Am I a Federal felon? Do I have a million dollars? Hmm...

"They have criminalized conduct that is legal under the current copyright act," says Adam Eisgrau of the American Library Association. "They have created a new crime that is completely divorced from copyright infringement." Eisgrau says this bill isn't required by the WIPO treaty, which only mandates that countries punish *actions* that infringe, not *devices* that do.

This legislation has hefty backing: Rep. Henry Hyde (full committee chair), Rep. Howard Cobel (subcommittee chair), and Rep. Barney Frank (ranking Democrat on the subcommittee). Sen. Patrick Leahy, who likely will endorse this approach, said yesterday that he was studying similar legislation.

The SPA (Software Publishers Association), naturally, is also supporting this bill. I've attached their press release below. The text of HR2281 isn't online yet

-Declan


SPA press release

WIPO Treaty Implementation Bill Introduced in House
Copyright Protections for Software Greatly Enhanced


(Washington, D.C. -- July 30, 1997)  Rep. Howard Coble (R-N.C.), chairman
of the House Judiciary Subcommittee on Courts and Intellectual Property,
introduced late yesterday the WIPO Copyright and Performances and
Phonograms Treaty Implementation Act (H.R. 2281).  The bill will make
necessary amendments to U.S. law to enable the Senate to ratify new
international intellectual property treaties negotiated last year in
Geneva.  The legislation is largely based on a Clinton administration
proposal delivered by Commerce Secretary William Daley.

SPA was a leading participant in the diplomatic conference last December
that drafted the WIPO copyright treaty, and considers copyright protection
for the Internet to be a major priority.

"SPA supports the objectives of H.R. 2281 and, while further analysis must
be done, believes that the Clinton administration and Rep. Coble have
achieved a workable balance," said Ken Wasch, SPA president.  "H.R. 2281
represents significant accommodations to guard against inadvertent
liability for multi-purpose computers, software and other concerns.  We
hope Congress understands that further concessions would undermine the
measures needed to make gains in the war against software piracy."

"We commend Secretary Daley and his senior advisers for their perseverance
in forging the administration's legislative proposal, Rep. Coble and his
staff for their determined effort to introduce the measure and the bill's
co-sponsors, Reps. Henry Hyde (R-Il.), Barney Frank (D-Mass.) and John
Conyers (D-Mich.).   In putting this bill before Congress, they have
reached an important milestone in establishing the legal framework needed
to protect electronic commerce in computer software."

H.R. 2281 would also prohibit knowingly provide false copyright management
information with intent to induce or conceal software piracy and other
copyright infringement, and make technical changes to bring U.S. law into
accord with the WIPO treaties.

Circumvention of technological copyright protection measures for purposes
of software piracy is a serious problem.  Today, copyright law cannot be
used to stop all kinds of unauthorized circumvention, nor can the making
and selling of technology designed specifically to do so.  These access and
copy control technologies, such as scrambling, encryption and electronic
locks, supplement legal protection in fighting software piracy but do not
solve the problem.  In fact, new problems are emerging on a consistent
basis.

For example, last May Chico-based SciTech Software, Inc. received ransom
demands for $25,000 from an on-line extortionist who threatened to
publicize on the Internet the instructions for disabling technology that
controls the 21-day evaluation period for its graphics utility program,
"Display Doctor."  "The scary thing is not that our protection could be
circumvented.  Dedicated pirates always find a way," said Kendall Bennett,
SciTech engineering director.  What's scary is that they can get the
information on how to circumvent into the hands of millions of casual users
who would normally license our software."

The immediate threat to SciTech has passed, but the blackmailer is still at
large.  Other SPA members have received ransom demands for as much as $1
million. That problem would be addressed by the new WIPO Copyright Treaty,
which requires the U.S. and other countries to make sure that software
companies have effective remedies against circumvention of technical
protection for copyrighted works.   SPA has spent months building consensus
among industry and government on how to do so, and Rep. Coble's bill has
put the issues before Congress.

SPA is the principal trade association for the computer software industry,
representing the leading publishers as well as start-up firms in the
business, home office, consumer entertainment and educational markets.  SPA
supports companies that develop and publish software applications and tools
for use on the desktop, client-server networks and the Internet.  SPA's
1,200 member companies account for 85 percent of U.S. revenue for packaged
and online software.

Contact:        Mark Traphagen, 
Vice President for Intellectual Property
and Trade Policy, 
SPA
(202) 452-1600, ext. 322.

Steve Bowers
Media Relations Specialist
SPA
(202) 452-1600, ext. 365.

Declan McCullagh Time Inc. The Netly News Network Washington Correspondent http://netlynews.com/