New Copyright Bill Clears Congressional Hurdle

Protection for the creative community or job security for lawyers? These are but two of many interpretations of the Digital Millennium Copyright Act, which won approval by voice vote in the US House of Representatives August 4. The bill will implement into US law the treaties signed by 157 signatories at the World Intellectual Properties Organization conference in Geneva in December 1996. A separate version was passed by the Senate in May. Differences between the two must be ironed out before a final version can be signed into law by President Clinton.

"Many countries around the world have not updated their laws to protect creative works online and have been looking to the United States for leadership," said Robert Holleyman, president of the Business Software Alliance, in praise of the legislation. "This bill strikes an appropriate balance between the goal of promoting electronic commerce and the interests of copyright owners," said Rep. Tom Bliley (R-VA).

See No Evil: a key provision of the bill is that Internet service providers, cable networks, and telephone companies won't be held liable for digital piracy that occurs on their systems---provided they don't know about it. Like not arresting the owner of a parking lot because a car theft happened there, this may encourage owners of "digital pipes" to look the other way when copyright infringement is concerned. On the other hand, it may make them less prone to monitor their customers' activities. An amendment to the bill stipulates that Internet "radio stations" must pay license fees to record companies for the music they play, whether or not the music is part of a "nonsubscription transmission." Music-oriented websites already pay performance fees to organizations like ASCAP and BMI.

The amendment was crafted by the Recording Industries Association of America in conjunction with the Digital Media Association. Steven Marks, deputy general counsel of the RIAA, had written a letter to webcasters in June saying they were required to pay fees to record companies. "Specifically, the reproduction of sound recordings in your computer hardware and digital transmission of those sound recordings require a license from the respective sound recording owners," he wrote. Webcasters will be required to publish on their sites the titles of all songs and CDs they play, as well as imposing digital watermarks as dictated by the copyright holders. A semblance of order is coming to the lawless frontier of the Internet.

But is the imposed order too stringent? One of the most controversial aspects of the bill is a statute that makes a crime of creating or selling any technology that could be used to break anti-piracy devices. Each violation will cost a perpetrator $2500. The House version allows the breaking of some encryption codes in the process of conducting research, but the Senate version does not. Some critics have interpreted the proposed new law as giving software makers carte blanche to distribute buggy software, because de-bugging attempts could be interpreted as copyright violation.

"The bill fails to further recognize that encryption research is simply one aspect of security research, and that research is different from actual practice," Purdue University computer science professor Eugene Spafford wrote to members of Congress recently. His letter was co-signed by 50 of the top security researchers in the United States.

Generic databases such as sports scores, stock prices, or census statistics were excluded from the WIPO treaties. Nevertheless, Republican Congressman Howard Coble of North Carolina got a bill passed in May that protects certain databases from unauthorized reproduction, in cases where such reproduction might harm the database owner's business---a stipulation with an awful lot of room for interpretation.

That's one reason experts like College of William and Mary law professor Trotter Hardy think the new laws are inviting trouble. A former computer programmer, Hardy has just completed a two-year study of copyright issues for the US Copyright Office. In his opinion, "technological fixes" are preferable to piling one law upon another.

"An amended copyright law creates complexity and invites further amendments," he says. Eventually, "it becomes very hard for average people to keep up and know what the new law means and how the new parts are related to the old parts." Hardy might have added that lawmakers are now in the odd position of attempting to legislate a phenomenon that few of them really understand, a fact painfully obvious to even the most casual viewer of C-SPAN.