September 16, 1997

COPYRIGHT ON DIGITAL MEDIA GETS FAIR TREATMENT FOR ONCE

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—A breath of much-needed fresh air wafted through Congress on September 3 as Senator John Ashcroft (a conservative Republican Senator from Missouri) introduced a copyright bill that will let librarians, teachers, students, and researchers use the Internet in furthering their intellectual contributions to society.

It’s been a hard year in Washington for Internet proponents. Following the inane Communications Decency Act, the surrender to big corporations embodied by its container bill (the Telecommunications Act), the stultifying additions to copyright law in the WIPO Compliance Bill, various half-considered stabs at controlling spam, and encryption bills that grow scarier day by day—well, it’s a pleasure to welcome Ashcroft’s Digital Copyright and Technology Education Act to town.

Ashcroft’s bill has a simple goal: to preserve in digital media the rules of copyright that already exist in traditional media. But it’s a hard goal that has eluded many students of law. Modern electronic media make copyright infringement as easy as downloading a file to a disk or pressing a “forward” key. In fighting this threat, content providers are looking for copy-protection mechanisms that would go to the other extreme. These would prevent the many types of “fair use” that support research and education, such as sharing a newspaper article with a colleague or a class.

The situation is made all the worse by a bill introduced in July that is marketed as a way of bringing the United States into compliance with an international treaty passed by the World Intellectual Property Organization, but in fact goes significantly farther and removes rights from users that they had before. Ashcroft’s bill would fix this bill with a degree of success that Bill Clinton hasn’t managed to achieve in fixing the Welfare Reform act.

Ashcroft makes it clear that copyright infringement can be charged only to the person originating the material, not to the owner of any network through which it passes. This distinction, which is plain sense to those who know the Internet, constantly gets blurred by laws that favor copyright holders with an exaggerated fear of losing control over their material. Seeing these broad-brushed proposals, librarians and Internet Service Providers quake at the thought that they might be held responsible because one of their clients downloads copyrighted material without the proper permission.

Ashcroft also protects fair use in its current form. The WIPO Compliance Bill gives copyright holders a way to undermine it by adding copyright protection measures that no one is allowed to circumvent for any purpose. Everyday archiving is outlawed under WIPO, but preserved by Ashcroft.

Complicated borderline cases that have caused a lot of legal debate are resolved by the Ashcroft bill. A link on a Web site or a reference to a document in an index can not be construed as copyright infringement, any more than could a reference in a book or newspaper. Futhermore, ISPs cannot be held responsible for what passes over “real-time communication formats, including chat rooms, streamed data, or other virtually simultaneous transmissions.”

Where the WIPO Compliance Bill could make a wide range of useful computing equipment illegal (because it might be judged to have a “primary purpose” for making illegal copies), Ashcroft reaffirms that the act of copying is illegal, not the technology.

No foe of copyright, Ashcroft also provides recourses for companies whose rights have been violated. If an infringing copy is found in a public online location, the copyright holder can make the site remove it “expeditiously.” Thus, if a miscreant posts a popular Microsoft executable, Microsoft can have it expunged before millions of freeloaders have the chance to download it.

This section of the bill is the only one that worries me, because it gives summary power to a content provider. However, plenty of balancing clauses are included to prevent abuse. The burden of proof still rests on the copyright holder to prove in court that the material was infringing. Material that accused of infringement can go back up after 10 days, or when a court order rules it non-infringing (whichever is sooner). And penalties are imposed on anyone who falsely claims copyright infringement.

In short, Ashcroft’s bill is a model of responsible law-making. It takes all sides’ requirements into account, understands the technology and the social context for its use, and achieves its goals through a careful combination of compromises. Does it stand a chance?

Big movie and music companies will probably oppose the bill because it prevents them from extending their control over more of the world’s intellectual and cultural resources. On the other extreme, some “information wants to be free” zealots will probably criticize it as a prop for outmoded property relations. The rest of us should support it, because it preserves the rights we have now.


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