September 29, 1998 3:10 PM PDT

Congress hashes Net copyrights

The rules for computer research, buying software or music over the Net, and testing technology could be forever changed by seemingly mundane copyright legislation federal lawmakers are negotiating over now.

The House and Senate have passed different versions of the Digital Millennium Copyright Act, and a joint-house conference committee will gather on Thursday to hammer out the final details of the controversial copyright bill to strengthen the protections for digital works.

The recording, film, and software industries are staunch proponents of the legislation because they say that although the Net offers them new business opportunities, the medium also makes it easier for people to illegally copy and distribute their products.

"This legislation is about American jobs and the economic vitality of one of the fastest-growing industries in the world," stated Eric Schmidt, chairman of Novell, who delivered a letter to House leaders encouraging passage of the bill on behalf of the Business Software Alliance.

On the other hand, academic and consumer groups say the bill lets companies build a digital toll gate around their content, charging people every time they access material that is now free in a library or purchased for indefinite use such as the films in a home video collection.

Moreover, opponents are against a provision added to the House version of the bill late in the game to let database owners--such as Lexis-Nexis or a sports-score aggregator--safeguard their entire data collections, prohibiting others from using the volumes of public facts in these databases to develop other businesses.

"The way things are set up under the law now, if you buy a [paper-based] encyclopedia, you could take it home, read it, tear the pages out, or you could wallpaper you house with it--if you want," said Skip Lockwood of the Digital Future Coalition. "But under this bill, when the products are digital, the whole market could change to a 'pay-per-use' model. That is what is being established here."

Under the current copyright law, once a book or musical work is purchased, for instance, a consumer has limited rights to reproduce, share, or resell the material.

The legislation was drafted to implement treaties signed at the World Intellectual Property Organization's Geneva conference on digital information and copyrights in December 1996--but the U.S. bills go much farther than the treaties.

The bill passed by both chambers also carries a handful of safe harbors that limit Net access providers' liability for copyright infringements made by their customers.

There is strong contention, however, over a section that was not included in the WIPO treaties, which makes it a crime in the United States to create or sell any technology that could be used to break copyright protection devices, such as encryption or digital watermarks. Violators could be charged up to $2,500 per act of circumvention.

The House bill permits cracking copyright protection devices to conduct encryption research or for the purpose of product interoperability, but the Senate version doesn't allow this activity. Critics say even with exemptions, the provision could still hinder college students and programmers from decoding encryption algorithms to test the strength of the data protection technology.

"This sort of thing can outlaw reverse engineering for computer security or to deal with the Y2K [bug] because those require circumventing technological measures to fix the problems" said Barbara Simons, president of the Association for Computing.

"Engineers don't want to have to worry that they could be breaking federal law and have to consult lawyers before doing their work," she added.

Libraries and educators argued that this "black box provision" would let intellectual property owners build a "digital fence" around material researchers can access under fair-use stipulations in existing copyright law.

The House version of the bill requires the Commerce Department secretary to conduct a study to determine whether fair-use access to copyrighted materials would be stifled by technological barriers. The study would cover the first two years the law would be in effect.

But the legislation could come out of committee without any House exceptions for research. And foes say the House bill is flawed as well. They say it is saddled with unrelated mandates, and contains the worrisome database protections, which would make it illegal to extract information from a database and make it available elsewhere--if such an act would "harm" the database company's current or potential business. The database issue was never argued in the Senate.

"Frequently you can't re-create this information, such as telescope reading from last year or what the stock market did on a set day," said Simons of the Association for Computing. If this is passed, "those facts could be owned by a company and anybody who wants to refer to it would have to pay them money to get the information."

Simmons argued that Congress's attempt to regulate technology is moving swiftly with little public attention.

"It's already illegal to violate copyright. The issue that is underlying this is that policy makers don't understand the technologies they are trying to regulate," she added. "It's been coming up for a long time and it's frustrating because the technical community doesn't understand how important this issue is."

 

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