Washington Brief - March 2002

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Dateline: January 4, 2002

Library & Higher Ed Workshop on the USA PATRIOT Act (P.L. 107-56)
As mentioned in last month's column, AALL joined seven other library and higher education organizations in sponsoring a workshop on the USA PATRIOT Act of 2001 (P.L. 107-56). The goals of the workshop were to provide the library and educational communities with a preliminary analysis of the implications of the act on our institutions and to identify necessary steps to take in order to comply with provisions of the new law. The "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" (USA PATRIOT Act) was designed to broaden the surveillance capabilities of law enforcement following the horrendous terrorist attacks of September 11, 2001. During the day's informative sessions led by legal counsels from several participating organizations, the group discussed specific sections of the act that raise issues for our institutions as Internet Service Providers (ISPs).

We were very fortunate in having a guest speaker from the Criminal Division of the U.S. Department of Justice. David E. Green, Principal Deputy Chief of the Computer Crime & Intellectual Property Section (CCIPS), joined the afternoon session to clarify some definitions and new requirements of the law, and to answer specific practical questions about the impact of these changes on our institutions. CCIPS has prepared a useful guide to the changes in surveillance that is available at: http://www.usdoj.gov:80/criminal/cybercrime/PatriotAct.htm. We hope to complete several helpful guides for our members by mid-January, including a matrix explaining several sections of the act and an analysis of where the new law may be ambiguous. It is very important that each of our organizations tracks requests from law enforcement made under the new act, so please contact me ASAP if your library receives such a request. Thanks.

AFFECT Response to New Proposed Amendments to UCITA
Also briefly mentioned in last month's column was the November 9-11th meeting of the Standby Committee on UCITA during which 80 proposed amendments were discussed by opponents and proponents, including many members of the AFFECT (Americans for Fair Electronic Commerce Transactions) coalition. The UCITA Standby Committee deliberated fairly quickly on the amendments and sent a 31-page report to the Executive Committee of the National Conference of Commissioners on Uniform State Laws on December 17, 2001 proposing 19 amendments to UCITA (http://www.nccusl.org/nccusl/UCITA-2001-comm-fin.htm). The major recommendations include a ban on electronic self-help and a rule that invalidates otherwise lawful contract terms prohibiting reverse engineering needed to establish interoperability between programs. While at first glance some of the amendments seem helpful, including the ban on self-help that has been a major source of controversy for many years, a closer analysis reveals that the recommendations are not entirely substantive. Four minor amendments submitted by AFFECT were included in the recommendations, although they are substantial equivalents already written into the law as enacted in the only two states to pass UCITA thus far, Maryland and Virginia.

The Standby Committee rejected the library proposal that would have affirmed the primacy of fair use in the enforcement of shrink-wrap or click-through licenses (pp. 19-21), demonstrating continued rejection of our efforts to distinguish between negotiated and non-negotiated contracts. Libraries did receive a very small crumb in that the Standby Committee recommended an amendment that would permit the transfer or donation of computer software to public libraries, and public elementary and secondary schools, even if the terms in a shrink-wrap contract indicate otherwise. However, there is a catch--the proposed amendment requires that the computer software that is transferred resides in a computer. More information on AFFECT's response to the recommendations is on the coalition web site at www.affect.ucita.com.

NARA Issues New Guidance in Response to September 11th
As part of our continued monitoring of the roll-back in access to government information following September 11th, I recently had a conversation with Deputy Archivist Dr. Lewis Bellardo regarding an announcement by the National Archives and Records Administration (NARA) that they are re-evaluating access to some previously available materials and reinforcing established practices on screening materials not yet open for research (http://www.nara.gov/research/access_factsheet.html). Dr. Bellardo expressed great reluctance in closing any records that had previously been available to the public, but at the same time noted concern about the use of NARA archival records that might assist the planning of a terrorist attack on a public site, provide access to evacuation or emergency planning procedures following an attack, or provide information on weaponry. NARA is currently working out procedures to implement the new policy in coordination with its regional offices but thus far has only withdrawn one document. We will continue to monitor this decision.

House Hearings on the DMCA Section 104 Report
Given that in the wake of September 11th Congress did not complete its work and adjourn until December 20th, the House Subcommittee on Courts, the Internet and Intellectual Property with little notice rescheduled the postponed September hearing on "The Digital Millennium Copyright Act Section 104 Report" for December 12-13th. The report by the U.S. Copyright Office recommended against amending the DMCA to include digital first sale stating that this doctrine does not apply well to the digital environment in which perfect copies can be made and transmitted with the click of a mouse. Register of Copyrights Marybeth Peters appeared as a witness both days to defend the Copyright Officer's recommendation to amend the DMCA by precluding liability for temporary buffer copies incidental to a licensed digital transmission of a public performance of a sound recording. This recommendation was strongly opposed by witnesses on behalf of the recording industry and the Business Software Alliance. Hearing statements are available from the subcommittee web site at http://www.house.gov/judiciary/courts.htm.

AALL Joins Amicus Brief on Copyright Term Extension
AALL recently participated in a joint amicus brief with the Digital Future Coalition, ALA, ARL, MLA and the Society of American Archivists in support of the plaintiff's petition for certiorari in Eldred v. Ashcroft, a lawsuit challenging the constitutionality of the Copyright Term Extension Act that extended the "limited" term of copyright to life of the creator plus 70 years. Other briefs in support of Eldred were submitted by Jessica Litman on behalf of 21 law professors and the Eagle Forum and Cato Institute. Legal materials, including these briefs as well as other lawsuits related to the latest term extension law, are available at http://eon.law.harvard.edu/openlaw/eldredvashcroft/.


Mary Alice Baish
Associate Washington Affairs Representative
Edward B. WIlliams Law Library
111 G Street, N.W.
Washington, DC 20001-1417
202/662-9200 * FAX:202/662-9202