May 15, 1998 2:50 PM PDT

Senate approves copyright bill

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The Senate has overwhelmingly approved legislation to uphold intellectual property rights in the digital age, which outlaws technologies that can crack copyright-protection devices.

The Digital Millennium Copyright Act, passed yesterday, expands copyright protections for online music, film, literature, and software by implementing treaties signed at the World Intellectual Property Organization's 1996 summit. If passed by the House and signed into law, the bill also will establish a handful of safe harbors that limit Net access providers' liability for copyright infringements made by their customers.

The bill clarifies that ISPs and Net directories don't have to police for copyright violations and are not responsible for infringements unless they have knowledge of such activity or gain financially from it.

Pushed by the recording and software industries, the measure was cleared despite a controversial condition that makes it a crime 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.

"I'm ecstatic about the vote in the Senate. It establishes the universal recognition that software piracy tools have to be prohibited to make e-commerce secure," Mark Traphagen, vice president of the Software Publishers Association, said today.

Groups such as the SPA and the Business Software Alliance say software makers lose billions of dollars each year to piracy, which is fueled by illegal trading on the Net. The industry's participation in e-commerce will be hindered, they argue, if people are allowed to post online bootleg passwords and serial numbers or utilities to crack copyright-protection devices that secure software sold online.

But libraries and educators charge that the so-called black-box provision would let intellectual property owners build a "digital fence" around material they are entitled to access under the "fair use" stipulation in the existing law. High-tech developers also worry the bill could outlaw any technology and criminalize reverse engineering, a practice that helps to establish interoperability between computer products.

The legislation was passed with some narrow exemptions for nonprofit libraries and archives, schools, and technology makers.

For example, for the purpose of interoperability, technology may be developed to bypass copyright protections.

"The exemptions might be a step in the right direction, but really the root problem is that this legislation is after technology and not behavior," said Tom Bell, director of telecommunications and technology studies at the Cato Institute. "The problem is that this legislation threatens to shut down whole areas of technological innovation."

Critics say the provision could be used to hinder college students and programmers from cracking encryption algorithms to test the strength of the data protection technology.

"This will have a chilling effect on our experts in encryption research. It will make them vulnerable to a prison term of up to five years for conducting research to improve the security of encryption," said John Scheibel of the Computer and Communications Industry Association.

Under the bill, libraries and schools also may circumvent copyright barriers to shop for materials, but they must delete the copies when done analyzing software or digital books. Although mostly supportive of the legislation, many research facilities still say it threatens their right to access public information.

"The bill, for the first time, gives information owners the legal right to control mere access to their information, and to use technology to place that information in a digital wrapper," said Adam Eisgrau, a spokesman for the American Library Association and the Digital Future Coalition.

"The bill effectively precludes journalists, students, researchers, innovators, or anyone else from making fair use of encrypted electronic information," he added. "Fair use is a defense to copyright infringement, but this changes that. It's like saying someone can use your car, but then the car is in a locked, guarded, and alarmed garage, which is illegal to enter."

The House is expected to take the legislation up this summer. If approved, the legislation also directs the Copyright Office to conduct a six-month study on how the law needs to be updated to address distance learning applications. The agency will have to make recommendations to Congress regarding whether public education facilities that provide Net access should be held liable for copyright infringements made via their networks.

 

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