Technology Law Column

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Published in the Chicago Daily Law Bulletin, October 12, 1995 at p. 6.

Bill to Amend Copyright Act Needs Work

Copyright 1995 by David Loundy

As you may be aware, the Commerce Department's Information Infrastructure Task Force (IITF) has been working on proposals to amend the Copyright Act (Title 17 of the U.S. Code) to account for advances in computer technology-- more specifically, for concepts such as electronic reproduction and distribution.

First the IITF released the "Green Paper." It was fairly strongly criticized. Many complained that the IITF Green Paper was too protective of copyright holders' rights, and not protective enough of copyright users' rights. Others went so far as to claim that the paper was so intentionally one-sided that it even misrepresented the current state of the law. (See e.g., Jessica Litman, The Exclusive Right to Read., 13 Cardozo Arts & Ent. L.J. 29 (1994).

After public hearings and additional work, the IITF released the "White Paper" in July-- the Final Report of the IITF Working Group on Intellectual Property Rights. Many people wondered why they had bothered with the additional work.

To be fair, clearly the White Paper is better researched than the original Green Paper, and the White Paper also proposed a bill to be introduced in Congress to implement the IITF's recommendations. Equally clear, however, is that the Final Report did not address many of the concerns people had about the Green Paper.

On September 29, matching legislation was introduced in both the House (H.R. 2441) and Senate (S. 1284) to implement the changes proposed in the IITF Final Report. Although some, such as many software publishers, applaud the IITF's suggested changes to the Copyright Act, the proposed changes still leave many people unhappy. As Professor Litman put it, "[r]eading one's mail or picking up one's telephone messages these days requires many of us to commit acts that the government's Information Infrastructure Task Force now tells us ought to be viewed as unauthorized reproductions or transmissions." (See Litman, supra.)

Although supposedly the product of more than a year's work, including public comment, the changes contained in the proposed legislation could still use some work. Some of the proposals are reasonable. Some are poorly thought out. Some of the needed changes to the Copyright Act are dismissed or not addressed in the Final Report, and are therefore not even considered in the proposed legislation.

The legislation, entitled the "NII [National Information Infrastructure] Copyright Protection Act of 1995," first addresses the issue of the transmission of copies.

Imagine this scenario: you log onto a bulletin board system or Internet file archive, and download a pirated copy of Windows. Microsoft sues, claiming you infringed its exclusive right to distribute copies (17 U.S.C. Section 106(3)).

"But wait," you say, "the Copyright Act defines a copy as a material object in which a work is fixed (17 U.S.C Section 101), in this case, the fixation is the archive's disk drive. The disk drive has not moved; therefore there has been no distribution of a copy!"

Now this doesn't mean Microsoft won't sue you into oblivion for violating their exclusive right to reproduce their protected works (17 U.S.C. Section 106(1)), it just means that there has been no distribution of a copy of the work.

The IITF doesn't like this situation, and thinks that the one already existing violation is insufficient protection, and therefore proposes changing the definition of "distribution." The proposed legislation would allow for a "distribution of copies" to be made by "transmission."

The NII Copyright Protection Act of 1995 next addresses certain exemptions for libraries and for the visually impaired. These proposals are a bit better. The legislation would add a new Section 108A to provide that copies of a work can be made for the use of the visually impaired. Non-infringing copies can be made if they are made and distributed by a non-profit organization, at cost, in a form intended for the visually impaired, so long as the copyright owner has not decided to put out an edition of the work for the visually-impaired within the first year after initial publication of the work.

The NII Copyright Protection Act would also amend the provisions of the Copyright Act which allow libraries, under certain circumstances, to make copies of protected works (17 U.S.C. Section 108).

The IITF White Paper acknowledges that the legislative history to the Copyright Act clearly intended that Section 108 would not cover digital reproductions of works-- thus the reason the Copyright Act currently provides for reproductions to be made in "facsimile form." However, the IITF reasons that the proposed amendments are a result of the need "to accommodate the reality of the computerized library" and would allow certain digital copies to be made.

While the White Paper points out that these additional copies are allowed to provide for standard archival uses of such works, and that only one of the copies allowed under the proposed section should be "in use" at any given time, this limitation is not clearly manifested in the proposed amendments to Section 108.

The Green Paper sought to prohibit the importation, manufacture, or distribution of devices that would bypass anti-copying mechanisms. The White Paper softened this approach, in light of the outcry that resulted from the strictness of the Green Paper's proposal, but it did so in a poorly reasoned and implemented fashion. The results of this reasoning are also contained in the suggested amendments to the Copyright Act.

The proposal would create a new section to the Copyright Act which would prohibit products "the primary purpose or effect of which is to avoid...any...system which prevents or inhibits the violation of any of the exclusive rights of the copyright owner."

This is sort of like saying "you can sell cars, so long as the primary purpose or effect is to propel passengers at or below the speed limit." It provides us with another example of the "guns don't kill people, people kill people" problem. It is not necessarily the device, but the use to which the device is put that creates a problem-- and infringing uses are already prohibited.

What the IITF-recommended amendments do not solve are some of the very real world problems posed by modern computer technology. To examine one of many of these problems, let's look at Professor Litman's example of reading e-mail. If someone types an infringing work into his or her computer and sends it to you by e-mail, a copy resides on your e-mail system. Since we started with an infringing copy, presumably the one on your e-mail provider's computer is an infringement as well. When you read your mail, by reading the message into your computer's random-access memory (RAM), you have created yet another copy (see, e.g., MAI v. Peak, 991 F.2d 511 (9th Cir. 1993) which held that reading information into RAM creates a potentially infringing copy). Furthermore, if the system operator makes a backup copy of the e-mail system to prevent against accidental erasures, another copy of the infringing message is made. Since copyright liability does not require intent or knowledge, both you and your system operator may be liable-- without ever having the chance to tell that the material is an infringement.

The IITF apparently thinks that service providers should be subject to potentially unlimited, unpreventable liability in these circumstances. The White Paper uses as an argument that this kind of liability already exists for other groups-- such as photofinishers who develop other people's potentially infringing photographs. Funny, that argument suggests to me that both classes should be given some immunity instead of giving neither protection.

This article has (necessarily) only scratched the surface of the issues raised by trying to adapt the copyright law to updated technology. (For readers who wish to read more about this topic, please look for the article "Revising the Copyright Law for Electronic Publishing" in 14 J. Marshall J. Computer and Info. L. 1 (1995).)

The Copyright Act is an attempt to carefully balance the Constitutional interests of both creators and users of intellectual property. Making the last set of changes to revise the copyright law for computer technology took many years of research and discussion. The Information Infrastructure Task Force's suggestions and analysis in the recently issued White Paper do not convey a sense of carefully considered, balanced, and reasoned change.

The proposed legislation that is a product of the IITF's efforts needs more consideration. The legislation is clearly inadequate for its intended purpose, and even what is included in the bills could use a more thorough examination.

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