ARCHIVED: Anti-Counterfeiting Legislation & Database Legislation

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August 12, 2002

We're asking that you contact your Senators to express your concerns about two copyright-related issues that may be coming up after the August recess and could move quickly through Congress before it adjourns for this session. You can reach your Senators' Washington office through the U.S. Capitol switchboard at 202-224-3121, or try to see them while they're home on recess.


    Senator Biden has introduced S. 2395, the Anticounterfeiting Amendments of 2002. The bill is intended to create liability for trafficking in illicit authentication features--a hologram, watermark, certification, symbol, code or other means of designating that the product to which the authentication feature is affixed is authentic. The bill could pose major problems for anyone exercising fair use. The library community is concerned that the bill could adversely impact librarians using interlibrary loan and making preservation copies of works. Potentially, if the TEACH Act is enacted to update the copyright law for distance education the distribution of copyrighted material without permission from the copyright owner could constitute a violation of the anti-trafficking provisions of S. 2395. The kinds of works included in the bill are phonorecords, computer programs, and motion pictures and other audiovisual works, all of which could be included in otherwise exempt transactions.

    In addition, there may be problems in the remedies provisions of the bill. Perhaps most alarming, this bill modifies the US criminal code, so that potential copyright infringement transaction -- or even exempt uses such as fair use -- could be subject via trafficking in illicit authentication measures to criminal penalties including imprisonment.

    Status: The bill has been passed out of the Senate Judiciary Committee without hearings or a report. Just before the Senate's August recess, there was an effort to pass the bill on the Senate floor on unanimous consent. Several Senators, however, placed a "hold" on the bill because of numerous concerns from diverse groups, including libraries and universities.

    Currently listed co-sponsors of the bill, in addition to Senator Joseph Biden (D-DE), include the following:

    Sen. Barbara Boxer (D-CA)
    Sen. Kent Conrad (D-ND)
    Sen. Michael DeWine (R-OH)
    Sen. Byron L. Dorgan (D-ND)
    Sen. Dianne Feinstein (D-CA)
    Sen. Orrin G. Hatch (R-UT)
    Sen. Ernest F. Hollings (D-SC)
    Sen. Patrick J. Leahy (D-VT)
    Sen. Patty Murray (D-WA)
    Sen. Benjamin E. Nelson (D-NE)
    Sen. Gordon Smith (R-WA)
    Sen. Strom Thurmond (R-SC)

    Sen. George Allen (R-VA) withdrew his sponsorship on 8/1/2002 because of his concerns about the bill.

    What you need to do: Contact your Senator - especially if he or she is listed as a co-sponsor - to let them know that this bill should not be passed until it receives careful analysis and until hearings are held. Your Senator should ensure that the bill not move forward. The carefully crafted balances of the Copyright Act should not be circumvented by hastily drafted and considered amendments that have not been the subject of even one hearing.

    As currently drafted it has unintended consequences that could be very harmful to our institutions and our users, as follows:

    • Copyright permits the copying of works in a wide variety of academic, library, and private consumer settings. S. 2395 would outlaw these reproductions if they involve making and providing to others (or "trafficking in") copies of works containing digital watermarks. S. 2395 would also inhibit the removal of the watermarks from these lawfully made copies. S. 2395's requirement that the prohibited trafficking involve "consideration" - transporting or transferring to another in exchange for "anything of value" -- would be easily met because libraries often receive reimbursement for the costs involved in making copies for interlibrary loans, and scholars frequently exchange materials of mutual interest.

    • S. 2395 imposes more severe penalties than the Copyright Act for identical behavior. Criminal liability under the Copyright Act attaches only for willful infringements that result in private financial gain or copies with a retail value of more than $1,000. By contrast, distributing a copy of even one song containing a digital watermark could trigger criminal liability under S. 2395. Thus, S. 2395 could lead to criminal sanctions for minor infringements by ordinary consumers, notwithstanding the bill's stated purpose of targeting "organized criminal counterfeiting enterprises" that are a threat "to the economic growth of United States copyright industries."

    • S. 2395 also gives civil plaintiffs more remedies than are available under the Copyright Act for identical conduct, including the potential for far greater statutory damages as well as treble damages from repeat offenders.


    Background: As you are aware, there have been extensive discussions throughout the 107th Congress among staff members of the House Energy and Commerce Committee and the House Judiciary Committee to draft a database protection bill that would be acceptable to all stakeholders, including libraries and universities. There is not yet any compromise legislation, although there may yet be a bill introduced in the House in the fall.

    Current status: In the meantime, however, we have learned from many Senate staff that one of the primary proponents of a broad database protection bill has been asking various Senators to sponsor a bill that our database coalition would find highly objectionable.

    What you need to do: Contact your Senator to let him or her know that the Senate should not move on any database protection bill without hearings that include all stakeholders. Moreover, you need to let both your Senators and your Representative know that we believe that current laws are more than adequate to protect these interests. But, if Congress is to consider a new law, we oppose any database bill that:

    • would not allow "fair use" of databases comparable to that under copyright law

    • would protect facts, which copyright has never protected

    • would allow a producer or publisher unprecedented control over uses of information, including downstream, transformative use of facts and government-produced data contained in a database

    • would not provide safeguards against monopolistic pricing

    • could hinder the progress of science, education, and research by not allowing researchers and educators access to and use of information and facts

Mary Alice Baish
Associate Washington Affairs Representative
American Association of Law Libraries

Miriam M. Nisbet
Legislative Counsel
American Library Association