The Copyright Act Faces Down the Net

On July 7, 1994, the Working Group on Intellectual Property Rights, chaired by the Commissioner of Patents and Trademarks Bruce A. Lehman, issued a Report detailing proposed changes to the 1976 Copyright Act to address computer programs and the Net. This group is a part of the Information Policy Committee, which is one-third of the Information Infrastructure Task Force (IITF), chaired by Secretary of Commerce Ron Brown, designed to "articulate and implement the Administration's vision for the National Information Infrastructure". Since the Administration hasn't articulated a clear vision for Haiti, Rwanda, Bosnia, gays in the military, health care, or abortion, I don't hold much hope for the Net. The Report was issued after a public hearing in November '93 and more will be announced to discuss it further. If you'd like a copy of the Report, call the Patent and Trademark Office (PTO) at 703-305-9300 and ask for the "Green Paper" entitled "Intellectual Property and the National Information Infrastructure" or download it from the IITF Bulletin Board on the Internet by using Gopher at iitf.doc.gov. If you'd like to submit your own comments in preparation for the public hearings, send them either to nii-ip@uspto.gov or via the snail mail address listed in the Report.

Why has the Report been issued? I see three principal reasons for the PTO to disseminate the Report at this juncture. The first reason is to rehabilitate the PTO from the Compton fiasco. Earlier this year, the PTO granted a patent to Compton which appeared to cover accessing data from a CD-ROM. Mr. Lehman announced the PTO would reexamine the patent after the public din concerning a 17-year monopoly on such a far-reaching technical issue became CRT-rattling. The patent was rejected after its subsequent reexamination. Not only is this type of thing just not done but it made the PTO appear to be a group of digitally-incorrect boobs with no knowledge of this history of computing. So, they did what lawyers do - write a long document containing some Prozac but mostly Valium.

The second reason is to educate the public to the technical truth that unauthorized electronic distribution of a computer program over the Net is copyright infringement. Remember, transmission can also be theft. The third reason is to make it easier for copyright owners to sue for copyright infringement. The current Copyright Act doesn't explicitly mention electronic distribution. And, if it doesn't address it, attorneys will argue about it. Plaintiffs can use the new provisions as specific statutory support for their claims that electronic transmission of their computer program is copyright infringement.

Do You Take this Law to be Your Net Spouse?

The proposed changes address issues regarding the interaction of computer programs and the Net. Definitionally, it proposes to add the phrase "or by transmission" to the words "publication", "distribution", and "importation", and to the list of exclusive rights belonging to copyright owners, to ensure that programs may be distributed or published over the Net (17 U.S.C.section 101, 106 (3), 602). It also proposes to modify the definition of "transmit" to include "distributions by a device or process whereby a copy or phonorecord of the work is fixed beyond the place from which it was sent." (17 U.S.C.section 101). In addition, it excludes copies of a program obtained via transmission from the definition of the "first sale doctrine". The "first sale doctrine" permits an owner of a particular lawfully-made copy of a program to dispose of it in any manner, with certain exceptions, without infringing the copyright owner's exclusive right to distribute the program. (17 U.S.C.section 109(a)(1), (2)). Since the owner of a program is not "disposing" of a copy of it via transmission, this form of distribution is excluded from the definition. These definitional amendments clarify the existing copyright law - if you electronically publish, distribute, or import a computer program, without permission of the copyright owner, you are committing an act of copyright infringement.

The Group decided that the ease of infringement via the Net and the difficulty of detection and enforcement of such infringement will cause copyright owners to look beyond copyright legal protection to technology protection. Therefore, the Report proposes a new section which prohibits anyone from importing, manufacturing, or distributing any "device, product, or component" or performing any service which will "avoid, bypass, remove, deactivate, or otherwise circumvent" anti-copying systems.(17 U.S.C.section 512).

Anyone who violates this new section will be an infringer of the copyright in the work which contains the anti-copying device or system. (17 U.S.C.section 501(a)). The Report proposes that courts may impound or destroy these devices. (17 U.S.C.section 503(a)). And, since copyright infringement is a crime (a little known fact), not only can you go to jail, but all these devices shall be (not maybe) forfeited and destroyed. (17 U.S.C.section 506(b)). In other words, don't even dream about doing anything anti-copying related. Considering the flap over the Clipper Chip, I think it's likely the cybersurfs will have plenty to crow about regarding these new sections.

The Group also decided that "copyright management information", which it defines as, for example, the name "and other identifying information" of the owner and "identification codes such as an ISBN number", which some programs require upon registration, are important enough to warrant protection. Therefore, if you fraudulently remove or alter this information or if you provide false information, you will be fined not more than $2500. (17 U.S.C.section 101, 506(g), (h)). Thinking about registering your computer programs using a Net nickname? Think again.

The Report discusses many other related areas which the Group feels need to be addressed in the future. These include: (a) to what extent educational institutions should have access to copyrighted works transmitted via the Net, (b) to what extent the Net should protect the owners of sound recordings (as opposed to the owners of the melody and lyrics contained within a song who are currently protected), and (c) to what extent international laws should be changed to ensure consistency on the Net. Anyone who wants to discuss these subjects may do so at the proposed public hearings.

If One Law is Good, Why Not Two?

Are these modifications really necessary? Kerry Konrad says, "Not really". He is an intellectual property litigator who has represented Lotus Development Corporation in their highly publicized copyright infringement cases for almost a decade. "The case law was already clear that transmissions were within the scope of the statute, but a change in the statute may just make it easier to establish a case," he says. I agree with him that the new proposals may be superfluous. The 1976 Coypright Act was designed to encompass "new technologies". And, in two recent cases involving Playboy's magazine and Sega's videogames, the courts easily found copyright infringement for non-authorized electronic transmissions by bulletin board services. But, if you've ever seen the movie Fail Safe, you know that redundancy isn't necessarily a bad word.

Courtesy of Marie D'Amico of Digital World.