November 25, 1997 6:05 PM PST

Scientists want Net law veto

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Legislation awaiting President Clinton's signature would chill the free flow of academic information by criminalizing the distribution of copyrighted materials via electronic networks such as the Internet, a group of computer scientists warned today.

As reported last week, the No Electronic Theft Act would make the unauthorized sharing, bartering, or exchanging of copyrighted works a criminal offense whether or not the infringer profited from the activity.

Warning that the act would undermine long-standing law that allows the public to use portions of copyrighted material, the Association for Computing Machinery is urging President Clinton to veto the bill. The association is an international group of computer scientists with 80,000 members.

The act would "criminalize the transfer of information that is currently protected under the U.S. 'fair use' doctrine," the association warns in a letter to the president. "We are concerned the bill may...restrict scientists and other professionals from making their research available on the Internet for use by colleagues and students."

Two attorneys, however, disputed the association's contention that the bill would eliminate the fair use doctrine, under which the public may quote portions of copyrighted work without the owner's consent.

"If there was fair use before [the law goes into effect], there will be after," said Jonathan Band, a copyright attorney at Morrison & Foerster in Washington, D.C. "The bill criminalizes behavior that was already unlawful, [and] if it was legal under fair use before, it is still legal" if the bill becomes law.

Pam Samuelson, a professor specializing in computer law the University of California at Berkeley's Boalt Hall School of Law and the School of Information Management and Systems, said she also opposed the bill, but added that the association's contention about fair use "may be a slight overstatement."

Nonetheless, Andy Grosso, an attorney for the association and a former federal prosecutor, stood by the warning. "The law redefines copyright infringement so that fair use is no longer a defense," he said. "If you read the language of the statute and apply the rules of construction, that's what you get."

While the debate appears academic in nature, its outcome could have serious implications for the free flow of information on the Internet. Without fair use, for instance, writers, artists, and journalists would be prohibited from quoting even small portions of speeches and other copyrighted works that appeared on the Net.

In any event, U.C. Berkeley's Samuelson said the issue isn't whether or not the bill would undermine fair use but rather the effect the law would have on professors and other educators. "I think the issue is the chilling effect," Samuelson said. "If there is any question of copyright infringement, institutions will be inclined to avoid the whole problem and take things down, even when years of litigation would have found the use fair."

White House officials were not immediately available to comment on whether Clinton plans to sign the bill into law.

 

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