ARCHIVED: NII Copyright Protection Act Of 1995

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Digital Future Coalition Testimony on
The "NII Copyright Protection Act Of 1995"

United States Senate Committee on the Judiciary

Presented By Professor Robert L. Oakley

May 7, 1996


EXECUTIVE SUMMARY

The Digital Future Coalition supports the goal of the "NII Copyright Protection Act" (S. 1284 & H.R. 2441) to update the Copyright Act for the digital future and has proposed a package of amendments to the bill addressing the problems identified below. These changes will assure that any new legislation is a watershed for American businesses of all sizes, schools, libraries, consumers and scholars.

Who We Are and What We Believe . . . .

The Digital Future Coalition -- representing over 2 million Americans -- is a deep, broad and unique group of leading business, library, educational, consumer and technology organizations committed to copyright law and policy that rewards creativity.

The DFC believes that the Copyright Act must continue to promote creativity in the future, as it has for hundreds of years in the past, by preserving the balance between strong intellectual property protection and robust access to information for all innovators, including those in business, libraries and education. Content control without access assurance will preclude the "Progress" that the Framers sought and the Constitution requires.

The "NII Copyright Protection Act" Should be Amended to . . . .

Provide certainty to the libraries, schools, educators and businesses that will build the NII and make it available to the nation as to when they will -- and will not -- be liable for infringing the Copyright Act by virtue of doing what they do best: maximizing the benefits of Internet technology for all Americans. Maintain the fundamental balance between ownership and access now in the law by "clarifying" both the scope of owner's rights in electronic transmissions (Section 106 of the Copyright Act) and users' ability to access copyrighted information (Section 107).

Assure libraries' and archives' ability to preserve our cultural heritage by maximizing their ability under the Copyright Act to preserve our nation's cultural heritage and make the Act technology neutral.

Reaffirm the First Sale Doctrine's applicability in "cyberspace" to allow a legally acquired digital copy of a work to be passed on electronically if the original is not also retained.

Foster "distance learning" especially critical to rural communities and the disabled by amending the Copyright Act to permit educators and their students, young and old, to realize the full potential of the NII.

Preserve and protect America's international competitive edge by striking the legislation's dangerously overbroad restrictions on device and component manufacture, import and distribution in favor of technology-specific, industry-developed anti-theft solutions.

Target for civil and criminal liability only those who intend to defeat copyright management information systems -- not innocent distributors, libraries and schools.

To Preserve its Prerogatives, Congress Must Urge the Executive Branch NOW to . . . .

Withdraw its calls for the World Intellectual Property Organization to conclude treaty negotiations in December 1996 on the same "Digital Agenda" now before Congress.

Instruct the U.S. delegation to WIPO to assure that no such action is taken internationally until a domestic consensus forms on these complicated issues, and Congress exercises its Constitutional power to set domestic copyright policy.

The Digital Future Coalition looks forward to working with Members of the Committee and their staffs to calibrate S. 1284 and the Copyright Act to preserve the critical balance traditionally at its core.

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Good morning, Mr. Chairman, Sen. Biden, and Members of the Committee. My name is Robert Oakley. I am a Professor of Law at the Georgetown University Law Center and Director of the Law Center's Library. I also serve as Washington Affairs Representative for the American Association of Law Libraries, a member of the Digital Future Coalition.

I am honored and pleased to appear before the Committee today on behalf of the Digital Future Coalition to share with you not only our large and diverse group's broad views on copyright and the National Information Infrastructure ("NII"), but to offer for the record a specific, seven-point package of amendments to S. 1284. The DFC respectfully requests that its proposals be considered and incorporated into S. 1284 before that legislation is reported out of this Committee.

Introduction

Before detailing the DFC's legislative package, Mr. Chairman, it is important that the Committee know who and what the Digital Future Coalition is, and what we stand for. If I may say, our very existence and the diversity of our membership are testimony themselves to the importance, breadth and complexity of the issues raised by S. 1284.

The Digital Future Coalition includes many public and private organizations that have been instrumental in building, and that will continue to expand, the Internet and broader NII now emerging.

We are, most simply, over two dozen distinct organizations with a cumulative membership of well over 2 million Americans.

We are also, through our organizational members: major technology and telecom- munications corporations; educators; the nation's school boards and libraries; nationally recognized consumer advocates; scholars and teachers of many disciplines, including intellectual property; and leading experts on privacy, the First Amendment and on information technology's pitfalls and potential.

We are -- to a member -- corporations and organizations with a bedrock commitment to intelligent and balanced copyright law made after substantial scrutiny by Congress. That means on the one hand, Mr. Chairman, that we respect and support strong copyright protection and, on the other hand, that we are committed to equally strong statutory respect for the Constitutional objective that undergirds all of copyright law: "the Progress of Science and useful Arts," and to the principle of Fair Use.

We agree that copyright is at root about promoting creativity. As creators ourselves, however, we understand that creativity results not just from the financial incentive for authors and inventors codified in Title 17 of the U.S. Code, but from that same statute's guarantee of access to copyrighted information. The truest and best measure of our copyright law's success is whether it succeeds in fairly balancing those equal priorities in the service of the Framer's commitment to the broad dissemination of knowledge and information in a Democracy.

Overview of Proposals

The Digital Future Coalition understands, Mr. Chairman, that you, Sen. Leahy and this Committee are eager to get down to the "brass tacks" of assuring that the development and marketplace deployment of 21st century information technology is not hindered by a 20th century statute. The DFC wishes to be absolutely clear that it shares that goal.

Our Coalition is also convinced, however, that -- in pursuit of that end -- Congress now has an opportunity (and a responsibility) to bring ALL of the critical precepts at the core of copyright law into the digital future together and in balance. In practical terms:

That means that, if the nature and scope of the monopoly rights granted to copyright holders is to be "clarified" by changing the U.S. Code, then the nature and scope of a key counterbalance to those rights -- the Fair Use Doctrine -- must be made equally clear in the law;

It means that, even as the Fair Use Doctrine is philosophically reaffirmed, Congress must practically assure that the continued ability of Americans in business, academia and the public at large to rely on and use copyrighted information -- and to develop new business models for its distribution -- are not precluded by overbroad restrictions on the manufacture of devices and systems needed to make fair use rights real;

It also means, Mr. Chairman, that Congress must deal directly in S. 1284 with the issue of who should be liable, when, and to what extent if a commercial, academic or library computer network carries copyrighted information without the author's permission. Without increased certainty in this critical area of the law, however, both commercial and non-commercial use of the NII and GII will be dramatically chilled by the potential for crippling litigation and liability.

Precluding Premature International Action on a "Digital Agenda"

The Digital Future Coalition is also critically concerned, Mr. Chairman, that -- unless checked -- activities by the Executive Branch in the international arena could moot the Legislative Branch's policy making prerogatives in this critical area of the law. Proposals virtually identical to those now before this Committee have already been presented by the U.S. delegation to the World Intellectual Property Organization by the United States' delegation, which confirmed just days ago that it intends to continue to call for a diplomatic conference to draft treaty language prior to the end of this year which would, in effect, codify the pending legislation in international law.

That call will next be heard from the U.S. delegation in Rome starting tomorrow as the "Stockholm Group" of industrialized nations meets for three days to consider and potentially endorse the U.S. agenda for a December 1996 diplomatic conference to be held in Geneva. The Governing Body of WIPO itself will meet in Geneva on May 20, less than two weeks from now, to cast plans for the conference in concrete. The DFC believes that the Framers would take a dim view of such de facto preemption of Congress' sole authority to make copyright policy. That possibility, however, now looms large on the international horizon.

Accordingly, Mr. Chairman, we urge you, the Committee and the Senate to immediately send a strong message to the Executive Branch that: (1) the Administration's "Digital Agenda" is premature for consideration by WIPO pending the formation of a domestic consensus and the conclusion of Congressional action on the legislation before us; and (2) the United States' delegation to WIPO should work affirmatively to assure that any such "Digital Agenda" is not placed before a 1996 or early 1997 diplomatic conference intended to amend the Berne Convention for the first time in 25 years.

Legislative Proposals

Turning now to the DFC's specific legislative proposals, I would like to request, Mr. Chairman, that they be incorporated in the record of these hearings at the conclusion of my remarks, together with relevant explanatory materials. These proposals, for the record, have been expressly endorsed by the undersigned members of the Digital Future Coalition. Thank you, Mr. Chairman. In sum, the DFC proposes:

that new provisions concerning the Fair Use and First Sale Doctrines, distance education and ephemeral digital reproductions of copyrighted works be added to S. 1284;

that Section 1201, regarding "Circumvention of Copyright Protection Systems," simply be stricken from the bill in favor of technology-specific solutions based on negotiated solutions among those most concerned; and

that proposed changes in two of the remaining provisions of the legislation be modified to better assure that the critical "balance" in copyright law just described is maintained. (Those provisions concern preservation activities addressed in Section 108, and "copyright management information" systems covered by new Section 1202.)

In addition, the undersigned DFC members urge the Committee not to approve S. 1284 unless and until it is amended to clarify and define the scope of network service providers' liability under the Copyright Act in a manner that does not require or encourage such providers to compromise the privacy rights of their users.

For the Committee's convenience, I will address the undersigned DFC members' proposed amendments in the order of the statutory sections to which they relate, beginning with Section 106 of the Copyright Act.

Section 106: Ephemeral Digital Reproductions

As introduced, S. 1284 would amend Section 106 of the Copyright Act to provide for a "transmission" right as an aspect of the "distribution" right already identified in subsection (3). If such a right is made explicit in the Act, however, further clarification of the statute is needed to assure that the mere act of reading a digital document will not constitute copyright infringement.

Such liability could well be imposed if the new transmission right is interpreted by courts to support a finding that every temporary reproduction of a work in a computer's random access memory (RAM) or "cache" storage (incidental to its use on a computer system) is a technical "copy" for all purposes under the Copyright Act. Under this construction of the law, activities that can now be undertaken without risk of liability in the analog environment would become a potential source of liability in the digital one.

While a few courts have considered "RAM" reproduction to be "copying" under the Copyright Act (see particularly Ninth Circuit decisions, such as MAI v. Peak, 991 F.2d 511 [1993]), this interpretation has been substantively addressed only in a few jurisdictions and has not been reviewed by the Supreme Court. It is, therefore, far from being settled law. It is, however, one of the central tenets of the White Paper on "Intellectual Property and the National Information Infrastructure" and thus clouds all discussions of rights and wrongs in cyberspace.

The "NII Copyright Protection Act" offers the Congress an opportunity to definitively clarify that the mere fact that a work in digital form is loaded into the random access or cache memory of a computer -- creating temporary electronic versions of the work destined for automatic erasure -- does not constitute the sort of "copying" with which the law of copyright is now or need be concerned. Accordingly, the DFC proposes that -- in addition to modifying Section 106(3) -- S. 1284 be broadened to amend the description of the "reproduction right" in Section 106(1) of the Copyright Act as follows:

For the purposes of this subsection, the ephemeral reproduction of a work in temporary computer memory or digital storage, which is incidental to the otherwise lawful use of that work, and which does not lead to the making of a permanent repro- duction, is not a copy. This language is intended to apply only to necessary and incidental reproduction of digital works in connection with their use on computer systems. It will have no application to situations in which permanent electronic copies, such as those made on a computer's disks (or other permanent or semi-permanent storage media) are made.

Section 107: Fair Use

As noted earlier in these remarks, it is critical that the copyright law strike an appropriate balance between protecting the rights of copyright owners and otherwise promoting "Progress in Science and the useful Arts." In the scheme of American copyright, "fair use" safeguards our collective interest in the flow of information -- which is, in turn, a source of economically valuable knowledge.

Fair use, in addition to reflecting in copyright law First Amendment-based principles of free speech, provides the basis for many of our most important day-to-day activities in scholarship and education. Moreover, it is no less vital to American industries, which lead the world in technological innovation. It is also of tremendous value to the Judiciary in dealing with the challenge of precisely such innovation, and repeatedly has been recognized by the Supreme Court as essential to the work of writers and others who creatively transmogrify the earlier works of others in the alchemy that we call "Art.".

The maintenance of a robust Fair Use Doctrine in the new legal environment of cyberspace thus remains a high priority of the Digital Future Coalition and, we respectfully submit, should rank among Congress' highest priorities, as well.

S. 1284 proposes to "clarify" that transmission is a form of distribution under the Copyright Act, one of the "bundle of rights" granted to copyright holders by Section 106 of the Act. Many also consider the proposed language an expansion of those rights. Under either interpretation, the Digital Future Coalition believes that a comparable change is necessary and appropriate in the "Fair Use" portion of the statute (Section 107) in order to assure that the scope of fair use parallels the scope of the rights to which it relates. Including such language in the pending legislation and the Act also will reaffirm Congress' commitment to the vibrancy of the Fair Use Doctrine in the digital future.

To those ends, the DFC proposes that the introductory paragraph of Section 107 be amended to read as follows (with proposed new language indicated by italics):

Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords, by transmission, or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright.

Section 108: Library Exemptions

The transformation of the information environment gives rise to both challenges and opportunities for many important social institutions, including libraries. The undersigned members of the Digital Future Coalition agree with you and Sen. Leahy, Mr. Chairman, that a "digital update" to Section 108 of the Copyright Act is required if the needs of libraries and researchers are to be met. Moreover, such an update is vital to libraries' ongoing and uphill efforts to solve a preservation problem which now ranks as nothing short of a national intellectual and historical crisis.

The Digital Future Coalition supports technical revisions to S. 1284 advanced by several of its member organizations (the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association) and supported by the Register of Copyrights. These revisions would make Sec. 108 "technology-neutral" throughout, thus allowing libraries to use the best and newest technology platform to carry out the activities authorized by Section 108.

Our proposal would also add an important new subsection designed to help the library community meet the special preservation challenges posed by digital works in obsolete formats (i.e., works which can no longer be accessed by the technologies that produced them because such technologies are no longer reasonably available).

Specifically, the DFC proposes that Section 108 be revised in a manner largely consistent with S. 1284 to read as follows (proposed new language in italics; deletions in square brackets):

(a) except as otherwise provided, notwithstanding the provisions of Section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or to distribute such copy or phono-record, under the conditions specified by this section, if--

{Subsections 1 and 2 remain unchanged};

(3) the reproduction or distribution of the work includes a notice of copyright if such notice appears on the copy or phonorecord that is reproduced under the provisions of this section.

(b) The rights of reproduction and distribution under this section apply to [one copy] three copies or phonorecords of an unpublished work duplicated [in facsimile form] solely for purposes of preservation and security or for deposit for research use in another library or archives of the type described by clause (2) of subsection (a), if the copy or phonorecord reproduced is currently in the collections of the library or archives.

(c) The right of reproduction under this section applies to [one copy] three copies or phonorecords of a published work duplicated [in facsimile form] solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.

Section 109: The First Sale Doctrine

It has long been recognized in American law that someone who legally obtains a book or video cassette, for example, may -- without the permission of the owner or fear of liability -- give, sell or otherwise transfer possession of that work to someone else. Library lending, for example, is a direct outgrowth of this "First Sale Doctrine" now codified at Section 109(a) of the Copyright Act.

The Digital Future Coalition rejects the suggestion, made in the report on "Intellectual Property and the National Information Infrastructure" (produced by the Working Group on Intellectual Property Rights of the President's Information and Infrastructure Task Force) and elsewhere, that the First Sale Doctrine applies only to the physical transfer of an actual object and does not apply to the electronic transmission of a work under any circumstances. Such analysis, in any event, misses the critical point that Congress now has the opportunity to determine whether some digital equivalent to the traditional "first sale" doctrine, as it exists in the analog information environment, should apply in cyberspace. We believe that it should.

Historically, the ability to pass on lawfully obtained copies of works has been important to libraries, scholars, and ordinary information consumers. It has also be a crucial factor in the emergence of new business models. Just as "first sale" in the past has given us everything from lending libraries to video rental outlets, we believe that the digital equivalent of "first sale" could be the basis for important new cultural and economic developments in cyberspace. One means to that end would be to add to Section 109 of the Copyright Act the following new subsection:

(f) The privilege set forth in subsection (a) extends to any transmission of a single copy or phonorecord so long as the transmitter erases or destroys his or her copy or phonorecord at substantially the same time. The reproduction of a work, to the extent required to exercise this privilege, is not an infringement.

If adopted, this proposal would codify a standard with which responsible users of the NII may reasonably be expected to comply, and one which would be no more difficult to enforce than a flat prohibition on all retransmissions of lawfully acquired digital copies of copyrighted works. Indeed, content providers could take advantage of increasingly sophisticated technological means to make it difficult, if not practically impossible, to forward such copies without simultaneously deleting them.

Sections 110 and 112: Distance Education

"Distance Education" is one of the most exciting and potentially productivity-enhancing trends in American education today. Using television and other technologies, educators are increasingly able to deliver non-profit educational services critical to success in the global economy to students in rural communities, disabled individuals, adults enrolled in continuing education programs, and many other special communities of learners. Literally millions of Americans benefit from these efforts. The Digital Future Coalition is concerned, however, that if the current law and pending legislation are not modified, the tremendous educational and social benefits of distance learning will be lost to millions of children and adults across the nation.

Students today enjoy the benefits of distance education in large part because of provisions contained in Sec. 110(2) of the Copyright Act of 1976, which allow for the "performance or display" of certain works delivered by means of "transmission" in non-profit educational settings. Today, that typically means television. Increasingly, however, distance educators will want and need to make use of digital transmissions over local networks and the Internet in order to maximize the reach and effectiveness of their services.

Under S. 1284, however, Sec. 106(3) of the Copyright Act would be amended to define transmissions of copyrighted works by means of digital networks as "distributions" of copies. The existing exemptions for education in Sec. 110, however, do not apply to the "distribution right." S. 1284, as written, thus promises to clarify and expand the rights of copyright proprietors while narrowing the continued ability of distance educators (in both government and non-profit institutions) to use the latest and best technology to carry on their crucial work.

Furthermore, unlike the broadcast technologies of the mid-1970's, digital networks make it possible to deliver distance non-profit educational services to students individually and outside traditional classroom settings through individual computer terminals. At present, however, the locations to which educators may deliver "distance ed" programming are limited under Sec. 110(2) of the Copyright Act. Moreover, the limitations of the Sec. 110(2) exemptions to certain classes of copyrighted works are increasingly outdated in an era of digital "convergence" and "multimedia" presentations.

Ideally, the best way to assure that the technologies of learning continue to flourish in the digital age would be to engage in a comprehensive rethinking of the relationship between educational practice and copyright, starting from first premises. Such an effort, however, would take time. If there is to be legislation in the near term to adapt copyright to the networked information environment, the undersigned DFC members believe it is essential that any such legislation include language that addresses these important distance education issues.

Specifically, the DFC proposes amending Sec. 110(2) -- and its companion Sec. 112(b) -- to bring distance education into the digital age by adding "distribution" to the list of conditionally exempt educational uses. Sec. 110 should be further updated by eliminating current restrictions the kinds of places in which exempt transmissions may legally be received, and on the kinds of works subject to the exemption. Finally, to help assure that these provisions are not abused, the DFC also proposes new restrictive language which would limit the scope of Sections 110 and 112 to transmissions primarily intended for the use of "officially enrolled" students. As modified according to our suggestions, Secs. 110(2) and 112(b) would read as follows:

Section 110(2):

2) performance, display or distribution of a work by or in the course of transmission -- if

(A) the performance, display or distribution is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution, and

(B) the performance, display or distribution is directly related and of material assistance to the teaching content of the transmission, and

(C) the transmission is made primarily for reception by students officially enrolled in the course in connection with which it is offered, or

(D) the transmission is made primarily for reception by officers or employees of governmental bodies as a part of their official duties or employment;Section 112(b):

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organization entitled to perform, display or distribute a work by or in the course of a transmission, under section 110(2) or under the limitations on exclusive rights in sound recordings specified by section 114(a) to make no more than thirty copies or phonorecords of a particular transmission program embodying the performance, display or distribution, if ---

[the balance of the statute as in the original............]

Proposed Section 1201: Circumvention of Copyright Protection Systems

The Digital Future Coalition does not take lightly, and does not believe frivolous, the concern of many in the entertainment and information industries that digital technology creates new dilemmas. The DFC does, however, take strong issue with the suggestion that proposed Section 1201 is an appropriately measured and balanced response to this concern.

As representatives of entertainment industries now readily admit, similar concerns over technological innovation have proven unfounded in the past. Originally viewed as a deadly threat to the motion picture industry, for example, the VCR actually spawned a new and previously unenvisioned market for that industry which now accounts for the majority of its domestic revenues.

Despite that experience (and positive experience in the past with narrow device-specific "black box" prohibition laws aimed at satellite signal piracy) the NII Working Group has offered Congress a vague and sweeping provision -- one which would, in effect, overturn the Supreme Court's decision that made the VCR industry viable and established the public's fair use right to "time shift" programs by recording them for private use.

In the Betamax decision, the Supreme Court held that because the Betamax is "capable of substantial noninfringing uses, Sony's sale of such equipment to the general public does not constitute contributory infringement of respondents' copyrights." Since Section 1201, as drafted, could outlaw devices that have substantial noninfringing uses if they do not also respond to all anticopying technology, we believe it reverses the Supreme Court's decision.

Moreover, because Section 1201 covers components as well as devices, it could be used by courts to outlaw entirely the sale of a variety of products including recording devices with substantial noninfringing uses. Such products should not be expected to comply with anti-copying encoding that would prevent fair use copying, would distort regular TV pictures, would require expensive licenses, or otherwise would frustrate consumers.

Members of the DFC do not advocate allowing consumers to circumvent properly protected copyright works through such systems as "black boxes" that have no commercially significant use other than to circumvent copy protection. But our members do support the right of consumers to continue to make legal, fair use reproductions of copyrighted works. We therefore recommend that Congress not adopt Section 1201. Rather, we urge Congress, working with concerned industries, to address copying issues on a more specific basis in terms of devices and technologies.

Technically expert DFC member organizations look forward to sharing with the Committee additional information regarding the viability of relying on technology to guard against the unauthorized use of copyrighted digital works in a manner consistent with the Fair Use Doctrine.

Section 1202: Copyright Management Information

The Digital Future Coalition is similarly concerned that proposed Section 1202, as incorporated in S. 1284, goes too far in attempting to further the laudable purpose of counteracting piracy by forbidding the misrepresentation of "copyright management information." Clearly, the development of systems and programs intended to provide consumers and other information users with information about who holds the rights to a copyrighted work, how to contact the rights holder, and (if permission to use the work is legally required) under what terms it may be obtained are not inherently objectionable. Penalizing individuals who remove or alter such information in order to further actual copyright infringement also seems appropriate.

As drafted, however, proposed Section 1202(a) also would penalize a potentially wide range of non-infringing activities. For example, a legitimate wholesaler which acquired several thousand copies of a copyrighted book or videotape each of which included accurate "copyright management information" (CMI) at the time of the acquisition might subsequently learn through the trade press that the rights to those works had been transferred as part of a major corporate acquisition. Under Section 1202(a), because the wholesaler knew that the CMI imbedded in each copy in his inventory had now been rendered "false" by market events outside its control, he or she would risk liability for redistributing them in the normal course of otherwise lawful business activities. Similar liability would be faced by libraries and educators.

This certainly unintended result would obtain because the only requirement for liability under Section 1202(a) is mere knowledge that false CMI has been distributed. Nonsensically, the distributor's intent and the reason that the information is or became inaccurate are irrelevant.

Section 1202(b), by contrast, speaks to the true heart of the problem -- the wrongful alteration or removal of such information. By incorporating a similar concept in Section 1202(a) the inadvertent sweep of the provision will be appropriately narrowed. Specifically, we propose that liability for transmitting false copyright management information be imposed only on those who do so in furtherance of actual copyright infringement. So modified, Sec. 1202(a) would read as follows:

False Copyright Management Information.-- No person shall knowingly provide copyright management information that is false, or knowingly publicly distribute or import for public distribution copyright management information that is false, in furtherance of infringement.

The DFC also is concerned that, by making the definition of "copyright management information" ("CMI") open-ended, S. 1284 effectively delegates to the Copyright Office the authority to define what will and will not be a criminal offense. Such determinations, the Coalition believes should continue to be made by Congress itself. In addition, if broadly defined, it is clear that CMI systems will be capable not only of providing information users with information about copyright proprietors, but will furnish such proprietors with data about the information user (see Chronicle of Higher Education, March 22, 1996, p. A23). Absent effective privacy safeguards (such as the development of anonymous payment mechanisms), serious privacy problems will result.

For both of these reasons, the DFC strongly urges that detailed hearings be conducted on the appropriate scope of the definition of CMI for purposes of the pending legislation. Not incidentally, such hearings also will afford authors an opportunity to be heard as to how CMI technology may best advance their significant interests in the digital information marketplace.

On-Line Service Provider Liability

Finally, the DFC wishes to highlight for the Committee an additional issue of very substantial concern to its members. While we are not presently proposing a legislative solution in deference to ongoing multi-party negotiations, the Digital Future Coalition believes that S. 1284 should not be reported out of the Judiciary Committee (or, certainly, approved by the Senate) unless it is explicitly amended to define the circumstances under (and the extent to) which Internet access providers, bulletin board operators, libraries, educational institutions, and other system operators will be held liable for violations of the new "transmission" right for copyright infringement by subscribers and other end-users. Such legislation is needed for many reasons, including the protection of privacy. Given the uncertain and fluid state of case law in this area, absent clear lines of liability service providers may have no practical defense to crippling damages but the invasive monitoring and supervision of their subscribers' private communications.

Conclusion

Like most participants in the networked information environment, the members of the Digital Future Coalition are creators of copyrighted works, as well as consumers of information. As such, we believe strongly in the importance of providing appropriate copyright protection in cyberspace for large content providers and individual authors alike. The new "transmission" right included in S. 1284 may be an appropriate means to this end. As we have indicated, however, the DFC is gravely concerned that the codification of that right -- without other compensating adjustments to the Copyright Act -- may miscalibrate the traditional balance of interests reflected in the Copyright Act today.

Such imbalance not only threatens consumer interests and to inhibit or preclude the emergence of new business models in cyberspace, but also promises to retard the very "Progress in Science and the useful Arts" that led the Framers of the Constitution to grant Congress the power to award copyrights over two centuries ago.

The undersigned members of the Digital Future Coalition appreciate this opportunity to present our views on S. 1284. We look forward to working with the Committee and its staff to craft legislation which honors the Constitution by reaffirming and guarding the balance at copyright's core.

Thank you again, Mr. Chairman.

Alliance for Public Technology
American Association of Law Libraries
American Committee for Interoperable Systems
American Council of Learned Societies
American Historical Association
American Library Association
Art Libraries Society of North America
Association of American Geographers
Association of Research Libraries
Committee of Concerned Intellectual Property Educators
Computer & Communications Industry Association
Conference on College Composition and Communication
Consortium of Social Science Associations
Consumer Federation of America
Consumer Project on Technology
Electronic Frontier Foundation
Electronic Privacy Information Center
Home Recording Rights Coalition
Medical Library Association
National Council of Teachers of English
National Education Association
National Humanities Alliance
National School Boards Association
People for the American Way Action Fund
Special Libraries Association