TESTIMONY REGARDING COMPREHENSIVE
IMPLEMENTATION OF THE DECEMBER 1996 WIPO
COPYRIGHT AND PHONOGRAMS TREATIES
UNITED STATES HOUSE OF REPRESENTATIVES
SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY
PRESENTED BY DOUGLAS BENNETT
PRESIDENT, EARLHAM COLLEGE
SEPTEMBER 17, 1997
Mr. Chairman, Representative Frank, and Members of the Subcommittee. I am
honored to appear before the Subcommittee on behalf of the undersigned members of the
Digital Future Coalition to share with you our large and diverse group's views on preserving
balance in copyright law for the digital age. The Digital Future Coalition is comprised of 38 of
the nation's leading non-profit educational, scholarly, library, and consumer groups, together
with major commercial trade associations representing leaders in the consumer electronics,
telecommunications, computer and network access industries. I am also especially pleased to
be here today, Mr. Chairman, having served as an advisory member of the United States'
delegation to the WIPO treaty conference last December.
I. CONGRESS SHOULD ACT ON COMPREHENSIVE AND BALANCED DIGITAL
COPYRIGHT LEGISLATION BEFORE RATIFYING THE WIPO TREATIES.
The Digital Future Coalition (DFC) welcomes President Clinton's submission of
the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty for
ratification. That action presents an important opportunity for the House -- through the careful
crafting of comprehensive legislation concerning copyright in the digital future -- to ensure the
continuation of balance in copyright law and policy as the nation moves into the next
Since its inception, the DFC has urged policy makers domestically and interna-
tionally to recognize the importance of both information creators and users in the public and
private sectors to the successful development of the emerging digital, networked environment.
Our coalition was extremely pleased, therefore, that the WIPO treaties adopted after intense
debate and many modifications expressly recognize and endorse the principle of balancing the
interests of copyright owners and information consumers. Domestic law should do the same.
Regrettably, however, the legislation proposed by the Administration to
implement the WIPO treaties -- introduced at the President's request in late July -- is seriously
defective. For the reasons detailed below, H.R. 2281 is both more and less than the WIPO
proceedings and sound public policy require it to be. What the bill contains is gravely flawed
and what it omits is critical to industry and society as a whole. As Congress undertakes the
first major revision of the Copyright Act since 1976, many issues that should be resolved to
assure continued balance in U.S. intellectual property law -- issues such as fair use, first sale,
library preservation, distance education, service provider liability, and the enforceability of
non-negotiated license terms -- are simply not addressed by the proposed implementing
legislation at all.
Thus, while the DFC supports the WIPO treaties, we strongly oppose H.R. 2281
in its current form as inimical to maintaining balance in copyright law and policy as it is
updated for the digital age. Moreover, the DFC believes that the nature and scope of such
implementing legislation must be fully understood before these treaties are ratified. Upon
introduction, this legislation apparently was presented to you and others, Mr. Chairman, as an
agreement among stakeholders. As articulated in a letter of August 4 jointly signed by the
DFC and five other major organizations, the DFC wishes to make absolutely clear that it is not.
Indeed, in the Coalition's view, the proposed implementing legislation would upset the balance
that has characterized U.S. copyright law throughout its history.
Unlike the flawed bills introduced at the Administration's request, legislation
recently offered in the Senate by Senator John Ashcroft of Missouri (S. 1146) would ensure
that the copyright-related interests of educators, librarians, high-technology businesses, and
other information consumers -- indeed, all parts of the private and public sectors -- are balanced
with the protections properly afforded to copyright owners and proprietors. The DFC urges
Members of this Chamber to consider similar legislation for the reasons set forth in this
I have noted, Mr. Chairman, that the DFC is deeply concerned both with what the
Administration's legislation contains and what it omits. I would like to take a few moments to
address each of those points in turn.
II. THE ADMINISTRATION'S PROPOSALS ARE ANTI-CONSUMER,
ANTI-TECHNOLOGY, ANTI-COMPETITIVE AND THREATEN PERSONAL
The Digital Future Coalition wishes to underscore here three principal concerns
regarding the proposals made by the Administration to date:
First, not only do proposed new Sections 1201 through 1204 of the Copyright Act
threaten to upset the existing balance of our copyright system, but they go beyond anything that
is required to bring U.S. law into conformity with the WIPO treaties. With respect to the issue
of anti-circumvention, there is some question as to whether any implementing legislation is
required. Moreover, to the extent that any such provision is necessary, the mandate of the
treaties could be satisfied by non-criminal provisions which penalize circumvention of
technological safeguards in connection with copyright infringement, rather than ones which
attempt to regulate the evolution of new electronic technologies.
Second, with regard to Section 1201, this sweeping new proposed provision of
the Copyright Act attempts to ban all devices that could be used to circumvent technological
measures designed to restrict access or prevent unauthorized reproduction of copyrighted
works. This provision threatens to stifle innovation. Furthermore, the privileges users and
consumers now enjoy under copyright law, such as fair use, could effectively be negated by
this needlessly overbroad provision.
Third, Section 1202 threatens with liability even individuals who, without any
intention to infringe or promote infringement, incidentally alter copyright management
information designed to identify copyrighted works. Taken together, Sections 1201 and 1202 --
and the egregious penalties proposed in Sections 1203 and 1204 -- create significant risks to
the privacy of individual users of digital information networks.
While a detailed analysis of proposed new Section 1201 of the Copyright Act is
appended to this testimony, Mr. Chairman, permit me to elaborate briefly on the DFC's
concerns with the approach and language of the Administration's proposals in H.R. 2281 over
Section 1201 -- Stifling Innovation and Punishing Consumers
Last year, the Clinton Administration proposed so-called "black box" legislation
that could have had serious consequences for the design of future general purpose computers,
digital VCRs and other recording products. The DFC helped demonstrate to the 104th Con-
gress that this approach was overly broad and needlessly anti-innovation and anti- consumer.
Congress rejected the proposal. In December 1996, over 120 nations attending the World Intel-
lectual Property Organization (WIPO) diplomatic conference in Geneva rejected the same
proposal. Instead, the WIPO nations adopted a provision that merely requires countries to
provide "adequate legal protection . . . against the circumvention of effective technological
With the introduction of its proposed treaty implementation legislation, the
Administration has again taken a broader approach that will punish consumers, educators,
librarians, researchers, and others by unreasonably impairing the availability and capability of
multi-purpose devices. This approach will have far-reaching negative ramifications for the
future development and exploitation of digital information networks like the Internet.
Specifically, the Administration's proposed implementing legislation would:
Of particular concern to DFC, violations of Section 1201 are not tied to
infringement of any intellectual property right held by a copyright owner. As a result, liability
is imposed even when the purpose of the activity is permitted by the Copyright Act today -- as
in cases of fair use or access to unprotected material. Such a provision is unprecedented in
copyright law. It cannot be overemphasized that H.R. 2281 criminalizes activities that are not
necessarily related in any way to copyright infringement. Were the proponents of H.R. 2281
interested merely in combating piracy, Mr. Chairman, they should have no objection to making
infringement an element of the offenses proposed in Section 1201, yet they have opposed such
a statutory formulation.
Furthermore, the WIPO treaties do not require such an extreme response. In fact,
this approach is inconsistent with the preambles of the WIPO treaties, which call for the
recognition of the need to maintain balance between the rights of copyright owners and "the
larger public interest."
Finally, the "so-called" savings clause in Section 1201(d) does nothing to
preserve this balance. While Section 1201 will not as a formal matter restrict existing
limitations and exceptions to copyright, it will as a practical matter preclude the exercise of
these limitations and exceptions by preventing the manufacture and use of the technologies
necessary for Them to be meaningful. Nor would the savings clause protect individuals who
gain "access" to works in violation of 1201(a)(1), even if they do so for entirely lawful
- damage education and research by allowing copyright owners to "lock
up" public domain materials, and thwart the fair use privileges of information consumers;
- threaten the security of computer networks by impeding encryption
- prevent legitimate "reverse engineering" in the development of new
software (effectively overturning a series of judicial decisions recognizing reverse
engineering as a legitimate fair use);
- outlaw, or force the redesign of, legitimate devices with substantial
non-infringing uses (effectively overruling the Supreme Court's Betamax decision, which
spawned the VCR revolution for the benefit of all American consumers and the
- require judges to second-guess manufacturers' decisions about the best
design for new generations of consumer electronic equipment and computers;
- frustrate efforts to provide parents with the capability to monitor and
- control children's on-line activities; and
- threaten the personal privacy rights of electronic consumers by
preventing them from disabling mechanisms designed to track their on-line activities in
the same way that some consumers now lawfully may -- and frequently do -- neutralize
telephone "caller id" technology.
Section 1202 -- Draconian Fines for Benign Conduct and a Threat to Personal
The WIPO treaties do require enactment of domestic legislation to safeguard the
integrity of so- called "copyright management information" -- digitally encoded data about the
title, authorship, and ownership of works. Once again, however, the proposed implementing
legislation goes too far. Section 1202 includes, in addition to criminal penalties protecting
CMI, civil penalties applicable even in cases where no specific intent to infringe or promote
infringement can be shown. In other words, even someone who alters digital identifiers
casually could be liable for a minimum of $2,500 in damages plus costs and attorney's fees.
Neither the letter nor the spirit of the WIPO treaties require member nations to enact such a
Section 1202 also authorizes the Register of Copyrights to expand the definition
of copyright management information ("CMI") in the future. In doing so, the Register "may
not require the provision of any information concerning the user of a copyrighted work."
While a step in the right direction of protecting personal privacy, this language is not adequate
to address genuine concerns about how personal information might be collected and used on
the Internet. The DFC recommends that this provision be amended to make explicit that the
term "copyright management information" does not include information that could be used (or
misused) to identify the user of a work, interfere with the public's present rights to receive
information anonymously, or otherwise infringe on personal privacy.
Sections 1203 and 1204 -- Egregious Remedy Provisions
The proposed Act establishes civil and criminal penalties for violations of
Sections 1201 and 1202. Most objectionable, Section 1204 imposes criminal penalties of up to
$500,000 and 5 years of imprisonment for a single, willful violation of Section 1201 or 1202
for commercial advantage or personal financial gain. A person could be subjected to these
severe criminal penalties simply for exercising fair use rights, if a court deems the person acted
for personal financial gain.
III. PROPOSALS TO UPDATE THE COPYRIGHT ACT WHICH ARE CRITICAL
TO COMMERCIAL INNOVATORS, EDUCATORS, LIBRARIANS,
ARCHIVISTS AND THE PUBLIC ARE MISSING FROM THE
Just as the proposed implementing legislation would do too much, it also would
do too little. Since the release of the Administration's White Paper on Intellectual Property and
the National Information Infrastructure in 1995, a number of issues not addressed in the
Administration's recent legislation have emerged during the domestic discussion of how to
balance the rights of copyrights owners with the right to access in copyright law and policy.
The Digital Future Coalition believes that all such issues should be resolved in connection with
Congress' consideration of the WIPO treaties and appropriate implementing legislation if
balanced copyright policy for the digital future is to be achieved.
Currently, a good start has been made in resolving the issue of on-line service
provider liability with the introduction of Representative Coble's bill, H.R. 2180 the "On-Line
Copyright Liability Limitation Act" - and Senator Ashcroft's more comprehensive bill, S. 1146.
DFC members believe that any so-called "OSP liability" legislation ultimately adopted must
take fully into account the concerns of both commercial and non-commercial access providers,
and we look forward to working with Chairman Coble, Mr. Frank and other members of the
Subcommittee and their staffs -- as well as with the members of all other affected industries
and professions -- to achieve that result in the House of Representatives.
In addition to liability considerations, there are five other issues which the Digital
Future Coalition believes can and should be resolved in this debate in a manner fully consistent
with the WIPO treaties:
1. Fair Use -- The Copyright Act, consistent with unanimous action by the WIPO
delegates, should make clear that this traditional exception to the rights of copyright owners is
fully applicable in the digital information age.
2. First Sale -- If we are to realize the full potential of digital information
networks, American law should be updated to permit a lawfully acquired copy of a copyrighted
work to be given away (or otherwise transferred) on-line, provided that the original is not
retained. That is how the law now treats tangible copies of copyrighted works. A digital
equivalent to this important doctrine should be created to ensure the realization of the potential
of digital information networks.
3. Library Preservation -- The current Copyright Act's outdated and
technology-specific provision upon which libraries and archives rely to preserve critical
scholarly and other cultural materials must be updated to make clear that preservationists may
lawfully use state-of-the-art technology and protection procedures to continue the same sorts of
archival activities which they have relied on in the print environment.
4. Distance Education -- Just as it did over 20 years ago when the copyright act
was last modernized comprehensively in the face of changing technology, Congress should
enable educators to use computers in distance education as robustly as teachers were authorized
to employ conventional and closed circuit television two decades ago.
5. Non-Negotiated Licenses -- Technology has never before permitted the mass
marketing of products subject to "take-it-or-leave-it" licenses printed on package labels or
displayed on-line. Limits should be placed on use of such license terms (including so-called
"shrink-wrap" and "click-on" licenses) to assure that teachers, students, and other users are not
forced to give up their use privileges as a condition of access to works in digital and non-digital
Fair Use: Balancing Copyright Law for a Digital Age and Beyond
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. It is no less vital to American industries, which lead the
world in technological innovation. Moreover, 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.
The Digital Future Coalition believes that a change is necessary and appropriate
in the Fair Use portion of the Copyright Act in order to assure that the scope of fair use
parallels the scope of the rights to which it relates. Including such language in pending
legislation also will reaffirm Congress' commitment to the vibrancy of the Fair Use Doctrine in
the digital future.
To those ends, the DFC proposes that Congress amend Section 107 of the
Copyright Act to make clear that fair use applies to all copyrighted works, regardless of the
manner in which they are lawfully distributed or used.
Digital Preservation: Protecting our Heritage
The transformation of the information environment gives rise to both challenges
and opportunities for many important social institutions, including libraries. 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
This update would make Section "technology-neutral" throughout, thus allowing
libraries to use the best and newest technology platform to carry out the activities - which
include preservation and archiving - authorized by Section 108.
An update 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 to make clear that: (1)
libraries, archives, and other non-profit educational institutions may use all appropriate
technologies to preserve deteriorating works; (2) sufficient non-circulating copies may be made
to assure a preserved work's survival; and (3) copies for research and public use may be made
and retained in multiple technological formats, when necessary.
The First Sale Doctrine: Applying Common Sense and Fairness in
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 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
The DFC urges the Subcommittee to amend Section 109 to make clear that,
regardless of the technological format in which a copyrighted work was lawfully acquired, that
copy may be passed on to another or resold, provided that the transferor does not retain a copy
of that work.
Distance Learning: Technology for Teachers and Children
Since the advent of broadcasting and other means of electronic communication,
educators have striven to use the latest communications technologies to provide or enhance
elementary, secondary, vocational and university-level schooling to every corner of the
country. Congress has for the past two decades supported distance learning in Section 110 by
expressly permitting electronically transmitted copyrighted works to be performed and
displayed in classroom-like settings. Specifically, the carefully-crafted provisions of Section
110(2) of the Copyright Act of 1976 allows for the "performance or display" of certain works
by means of "transmission" in educational settings.
However, this limited exemption, though appropriate for the use of traditional
broadcast technology, is inadequate to permit educators and students involved in distance
learning to electronically transmit or access lessons through digital information networks - such
as the Internet - that may now be televised.
Therefore, the Copyright Act should be updated to: (1) grant educators the right
not only to perform and display a transmitted copyrighted work (under appropriate
circumstances), but to "distribute" the work as well; (2) reflect in the definition of a
"classroom" that education no longer takes place only in a defined space in which a teacher
lectures to a group of students who take notes; and (3) recognize that -- if educators are to reach
a generation reared on television, video games and the Internet -- they also should be permitted
to use "multimedia" and other new forms of copyrighted material in distance learning lessons
under the same terms and conditions under which they now access more traditional works, such
as books and sheet music.
Non-Negotiated License Terms: the Collision of Contract, Copyright &
The current trend toward the use of "shrink-wrap" and "click-on" licenses to
define the terms on which information consumers are permitted to use works of which they
purchase threatens to undermine decades of work by the Congress and the Courts to define and
maintain the vital balance of American copyright law. If the terms of a virtual contract of
adhesion can dictate to an information consumer that copyright law notwithstanding she waives
any fair use privilege as a condition for gaining access to a protected work, our intellectual
property law will increasingly be made through contract cases decided under state law.
Unfortunately, recent case law, including the decision in ProCD v.
Zeidenberg, suggests that this is no mere possibility, but a current reality. Ongoing efforts
to revise the Uniform Commercial Code to provide for the easy enforcement of "shrink-wrap"
and "click-on" licenses in sales to consumers threaten to further destabilize the foundations of
our national federal intellectual property system. We believe that it is important that before this
trend goes farther, the Congress reassert the primacy of federal law.
Obviously, agreements freely negotiated among parties with equivalent
bargaining power may sometimes include terms constraining further use or reuse of licensed
information. Such agreements, however, do not threaten to become de facto law of intellectual
property. By contrast, "shrink-wrap" and "click-on" licenses do. Thus, the DFC urges
Congress to amend the existing Section 301 of the Copyright Act, which deals with
preemption, to make clear that "non-negotiated" license terms which contravene the provisions
of the Copyright Act by restricting the use of unprotected material or abrogating limitations on
exclusive rights should be unenforceable.
The issues of circumvention and copyright management information addressed
by H.R. 2281do not, and cannot, stand alone. If Congress seeks to ensure continued balance in
the Copyright Act as it is updated for the digital age, other issues of equal importance must be
resolved at the same time. Accordingly, the Digital Future Coalition submits that any
legislative package designed to implement the WIPO treaties should address the issues of
service provider liability, fair use, distance learning, first sale, digital preservation, and
non-negotiated license terms. Moreover, as in the past, formal ratification of the treaties should
await broad agreement on such legislation.
The Digital Future Coalition, itself comprised of information proprietors and
users, recognizes the need to modernize copyright to apply productively in cyberspace. As
Congress undertakes the first major overhaul of the Copyright Act in over two decades, the
DFC urges all Members to take the time and care required to honor and reach the Framers' goal
of assuring "Progress in Science and the Useful Arts." The DFC looks forward to working
with this Subcommittee, the full Judiciary Committee, and the Administration to enact
comprehensive legislation that ensures balance in the Copyright Act into the next millennium.
American Association of Law Libraries
American Association of Legal Publishers
American Committee for Interoperable Systems
American Council of Learned Societies
American Library Association
Art Libraries Society of North America
Association of Research Libraries
College Art Association
Committee of Concerned IP Educators
Computer Professionals for Social Responsibility
Computer & Communications Industry Assoc.
Consortium for School Networking
Conference on College Composition
Consortium of Social Science Associations
Consumer Project on Technology
Electronic Frontier Foundation
Electronic Privacy Information Center
International Society for Technology in
Home Recording Rights Coalition
Medical Library Association
Modern Language Association
National Association of Independent Schools
National Council of Teachers of English
National Education Association
National Humanities Alliance
National Initiative for a Networked Cultural
National School Boards Association
National Writers Union
Society of American Archivists
Special Libraries Association
United States Catholic Conference
United States Distance Learning Association
Visual Resources Association
DIGITAL FUTURE COALITION
Detailed Analysis of Proposed 17 U.S.C. 1201 in H.R. 2281
Section 1201(a) concerns the circumvention of a technological protection
measure that controls "access" to a copyrighted work. Section 1201(a)(1) prohibits the act of
such circumvention; Section 1201(a)(2) prohibits the manufacture or importation of devices
which achieve such circumvention. In plain English, Section 1201(a) seeks to prevent a user
from gaining access to a work without paying for it. While the general principle is
non-controversial, the language implementing it is far too rigid. It fails to acknowledge that
there are legitimate reasons for unauthorized access. Section 1201(a) is not designed to
implement the WIPO treaties, which address the circumvention of specific anticopy
technologies; rather, Section 1201(a) is designed to prevent the circumvention of technologies
designed to bar any unauthroized access, for whatever purpose, to copyrighted works.
The problems begin with Section 1201(a)(1), which is not limited to cases where
a user has not paid for access to the work. Thus, even if a user does pay for access to the work,
the content owner could still deny her access to parts of that work. The user, for example,
might purchase a multimedia product which contains a bug. Section 1201(a)(1) prevents the
user from circumventing the technology which controls access to the computer code underlying
the multimedia product. This prevents the user from correcting the bug herself. The vendor of
the product might elect to deny its purchasers access to the underlying code so as to force the
purchasers to use the vendor's maintenance services. Moreover, Section 1201(a)(1) could
operate to prevent a licensee from gaining access to a work to make a back-up copy of a
software program, even where this would be permitted under Section 117 of the Copyright Act.
Likewise, it could be employed to frustrate the operation of the "first sale" doctrine under
Additionally, it would be easy to exploit this provision to obtain de facto
perpetual copyright protection. If a novel were about to enter the public domain because the
term of protection would soon expire, the content owner could attach a new foreword, and then
protect the novel and the foreword with access control technology. Because the foreword is
still protected under the Copyright Act, the user would be barred circumventing the access
control technology, even though the text of the novel itself was no longer protected.
Section 1201(a)(1) would also chill encryption research. The field of
cryptography advances by researchers attempting to crack existing security systems. Once a
system is cracked -- once its weaknesses are identified -- researchers can find ways to
strengthen it. Section 1201(a)(1) seems to permit this research activity only if the content
owner permitted his encrypted work to be decrypted; that is, only if the owner of the content
protected by the system agrees in advance to the research by the particular researcher. The
research process will inevitably be retarded as the general counsels of universities and
encryption firms prohibit researchers from proceeding until all necessary authorizations have
been received in writing.
It would be a mistake to assume that only legitimate content owners would take
advantage of Section 1201(a)(1). A prohibition on the circumvention of access control
technology could prevent parents, for example, from supervising their children's use of the
That regime also could operate to restrict an individual's ability to protect his
personal privacy. Once a "cookie" -- a tiny computer program which transmits information
concerning the contents of a computer's memory -- gets implanted in a user's hard drive,
Section 1201(a)(1) could prohibit the user from circumventing the cookie's access control
technology in order to disable it. Cookies, after all, are arguably copyrighted works. This
inability to disable a cookie would be particularly destructive if the cookie belonged to a
criminal who was using the information it generated for unlawful purposes. Section 1201(a)(1)
would in similar fashion prevent a user from disabling a virus -- another copyrighted work.
Section 1201(a)(2) compounds the problems identified with respect to Section
1201(a)(1) by prohibiting the manufacture of products which would enable these desirable acts
of circumvention. Moreover, Section 1201(a)(2) has problems of its own unrelated to Section
Section 1201(a) contains one provision targeting the act of circumvention and
another provision targeting the manufacture of circumvention devices. Section 1201(b), by
contrast, targets only the manufacture of circumvention devices. In earlier drafts considered by
the Administration, Section 1201(b) also prohibited the "use" of circumvention devices. The
Administration treats its deletion of the use prohibition as a major concession to the user
community. It is, however, a completely empty concession, because the manufacturers are still
prohibited from making the devices users might wish to use.
The fundamental flaw with Section 1201(b) is that it prohibits the manufacture of
anticopy circumvention devices, regardless of the purpose of the circumvention. Like Section
1201(a), Section 1201(b) is based on two flawed assumptions. First, it incorrectly assumes that
only bad actors -- pirates -- want to circumvent. Second, it incorrectly assumes that only good
actors -- legitimate content providers -- would want to use anticopy technologies.
There are many legitimate reasons for seeking to circumvent anticopy
technologies. These reasons are as numerous as the exceptions to copyright contained in the
Copyright Act. The most obvious is fair use. A developer of innovative Internet software, for
example, would not be able to purchase or develop the tools necessary to circumvent a
software lock intended to prevent reverse engineering permitted under the fair use doctrine.
By preventing this reverse engineering, a dominant vendor of Internet access software could
limit the ability of the innovative software to interoperate with the vendor's software.
Section 1201(b) would also limit the exercise of privileges other than fair use.
Libraries might not be able to obtain the devices necessary to make the preservation copies
permitted under Section 108. Purchasers of computer programs might have no practical way to
make back-up copies permitted under Section 117. In short, Section 1201(b) would render
ineffective almost all the exceptions in the Copyright Act.
Finally, Proponents of Section 1201 assert that the savings clause in Section
1201(d) insures that fair use and the other limitations in the Copyright Act will not be curtailed
by Section 1201. Regrettably, Section 1201(d) as drafted does not achieve this result. It
simply says that Section 1201 will not "affect" existing limitations on the exclusive rights of
copyright owners or existing defenses to actions for copyright infringement brought in
connection with those rights. While Section 1201 will not as a formal matter prevent users and
consumers from relying on limitations and exceptions to copyright, as a practical matter it will
preclude the exercise of these limitations and exceptions by preventing the manufacture of the
technologies necessary for their exercise.