The Honorable Howard Coble, Chairman
House Judiciary Subcommittee on Courts and Intellectual Property etc.
Dear Chairman Coble:
The Subcommittee on Courts and Intellectual Property Committee is holding hearings regarding the legislative proposals contained in the Digital Millennium Copyright Act (DMCA) Section 104 report issued by the Copyright Office on August 29, 2001. While these proposals are important and worthy of discussion, the undersigned organizations wish to draw the SubcommitteeÕs attention to other aspects of the Section 104 report -- in particular, the reportÕs flawed reasoning in rejecting other legislative proposals.
During the debates surrounding the DMCA in 1998, librarians and technologists pointed out that the DMCA threatened to upset the balance struck in the Copyright Act, giving an unprecedented degree of control to copyright owners as the expense of the public.
In particular, the DMCA is at odds with two copyright law provisions meant to benefit the public: the first sale doctrine and the right to make software backups. The "first sale" doctrine permits an owner of a copyrighted work to resell, lend, or otherwise dispose of the work without having to obtain the permission of the copyright owner. It is this provision that makes lending libraries and used book and music stores possible. The software backup provision was meant to permit consumers to make copies of software for backup purposes. Both provisions are threatened by the DMCAÑif a copyright owner adds technical protection measures that make the exercise of these rights impossible, the ban on circumvention and circumvention devices would make it impossible for a consumer to exercise either of these rights. Responding to the concerns of librarians, technologists, and consumers, Congress asked the Copyright Office to study how the DMCAÕs circumvention ban might affect the "first sale" doctrine and the right to make software.
Unfortunately, in its report the Copyright Office misses the forest for the trees and concludes that the DMCA does not pose a threat to these important elements of the public side of the copyright balance. Although the Copyright Office analysis is flawed in a number of respects, two failings stand out:
In its report, the Copyright Office recognizes that the spread of technical protection measures used to "tether" works to particular computers may pose a serious threat to the viability of the lending library system. In its report, however, the Copyright Office concludes that these systems have not yet been widely deployed, and thus that the DMCA does not pose a threat at this time. The difficulty with this view is that it ignores the imminent introduction of numerous "tethering" technologies. For example, the leading e-book formats developed by Microsoft and Adobe each permit the tethering of e-books to particular PCs or readers. The MusicNet online subscription music service, due for introduction in a matter of weeks, also includes a similar tethering system. Many digital rights management (DRM) systems not only tether works, but also include "time out" after a limited period of time. These capabilities are a central tenet of most DRM systems (see article in October Wired magazine).
The technological protections also necessarily threaten the viability of lending libraries. If library patrons are faced with a collection comprised entirely of "pay per view" content that must be individually activated on a PC, the library will have been transformed into little more than a retail distributor for copyrighted works.
The Library of Congress (of which the Copyright Office is a part) itself illustrates this impending crisis. In order to register a copyright in the U.S., a copyright owner must deposit copies of the work with the Copyright Office. Much of the Library of CongressÕ collection is drawn from these registration deposits. Imagine, however, that e-books are submitted with DRM systems that restrict access to the work (the first e-books were recently accepted by the Copyright Office as registration deposits). The Library of Congress would suddenly find its shelves filling with works inaccessible to the public without payment. Any effort by the Library to circumvent these DRM systems would run afoul of the DMCA.
The second central flaw in the Section 104 report is its treatment of temporary copies made in the random access memories (RAM) of computers. The report concludes that "no compelling evidence was presented to us during the course of our study that would support a blanket exception for incidental copies." By once again missing the forest for the trees, the report overlooks the threat to innovation caused by treating temporary copies as potential infringements.
RAM copies are essential to the operation of computers, and thus are essential to the operation of the Internet. A copyrighted work can not be transmitted across the Internet without the making of multiple temporary copies. Although the report found no compelling evidence supporting a blanket exemption for temporary copies, Congress already has had to fashion two exceptions for such copies. First, the "mere conduit" safe harbor in Section 512(a) of the DMCA was fashioned largely to insulate service providers from potential liability for temporary copies made on their systems. Second, Title III of the DMCA expands Section 117 of the Copyright Act to permit temporary copies of computer programs made during the course of hardware maintenance by independent service organizations. The report recommends yet a third exception, this time for buffer copies made during the course of webcasting. Three amendments within three years should constitute sufficient evidence for the Copyright Office to conclude that a serious problem exists.
Temporary copying is inherent to digital technology. If Congressional relief from copyright liability must be sought every time a new digital application emerges which makes a new kind of temporary copy, innovation will be impeded. Requiring technology companies and their customers to rely on the fair use doctrine in every instance is unworkable. As the Copyright Office itself said in the context of buffer copies, "the case-by-case fair use defense is too uncertain a basis for making rational business decisions."
Failing to recognize the uncertainty caused by treating temporary copies as potential infringements, the report opposes adoption of the temporary copy exception contained in legislation introduced in the 105th Congress by then-Senator Ashcroft, and Congressmen Boucher and Campbell (S. 1146/H.R. 3048). We urge the Subcommittee to conduct its own inquiry into this matter.
If you have any questions, please contact Professor Peter Jaszi at (202) 274-4216.
Respectfully submitted,
American Library Association
Association of Research Libraries
Computer and Communications Industry Association
Digital Future Coalition
Electronic Frontier Foundation
Home Recording Rights Coalition