Circumvention of copyright protection systems

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Tuesday, May 2, 2000
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The hearing in the above-entitled matter was held in Room 202, Adams Building, Library of Congress, 110 Second Street, S.E., Washington, D.C., at 10:00 a.m.
MARYBETH PETERS, Register of Copyrights
DAVID CARSON, ESQ., General Counsel
RACHEL GOSLINS, ESQ, Attorney Advisor


ROBERT KASUNIC, ESQ., Senior Attorney Advisor


Panel I:
Peter Jaszi 8

Digital Future Coalition

Sarah Wiant 19

American Association of Law Libraries

Betty Landesman 30

D.C. Library Association

Panel II:
Christopher A. Mohr, Esquire 89

American Business Pres, et al.

David Mirchin 98


Joseph Montoro 110

Spectrum Software

Keith Kupferschmid 134

Software & Information Industry Assoc.


10:10 a.m.

MS. PETERS: Good morning. My name is Marybeth Peters. I am the Register of Copyrights, which means Director of the United States Copyright Office. I welcome you to the first of three days of hearings here at the Library of Congress. Today, tomorrow and Thursday we will hear testimony which generally we'll begin at 10:00 in the morning and generally will begin at 2:00 in the afternoon, although I have a crisis this afternoon, so this afternoon we're actually going to begin at 2:30.

Two weeks from Thursday we will hold another day and a half of hearings at Stanford University in Palo Alto. Those dates are May 18th and 19th. A schedule for all five days of the hearings is available today and is also available on the Copyright Office web site.

As I think all of you who are here know, these hearings are part of an ongoing rule making process mandated by Congress under Section 1201(a)(1) of Title 17 of the United States Code. Section 1201 was enacted in 1998 as part of a Digital Millennium Copyright Act. It provides that no person shall circumvent a technological measure that effectively controls access to a copyrighted work. However, this provision does not go into effect until October 28, 2000, two years after the date of enactment of the DMCA.

Section 1201(a)(1) provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works through this rule making procedures. The purpose of our proceeding is to determine whether there are particular classes of works as to which users are or likely to be adversely effected in their ability to make non-infringing uses. They are prohibited from circumventing technological access control measures.

Pursuant to the Copyright Offices' notice of inquiry published in the Federal Register on November 24, 1999 the Office has receive 235 initial comments and 129 reply comments. All of these are available on our web site for viewing and for downloading.

After the hearings here and at Stanford we will accept a final round of post-hearing comments. These post-hearing comments are due Friday, June 23rd. In order to allow interested parties adequate time to respond the hearing testimony the Copyright Office intends to post the transcripts of all of the hearings on our web site as soon as they are available. We also intend to record the testimony for streaming and/or downloading from our web site and we expect that those recordings will be available before the transcript. The transcripts will be posted on the web site as they are originally transcribed, but the office will give persons testifying an opportunity to correct any errors in the transcripts and when those corrections are received we will put the corrected transcripts on the web site.

Those of you who are here to testify have already been advised what we intend to do. And, by you appearance we understand that we have your consent to do this. The comments, reply comments, hearing testimony and post-hearing comments will form the basis of evidence for my recommendation to the Librarian of Congress.

Before making that recommendation I am to consult with the Assistant Secretary for Communications and Information of the Department of Commerce's National Telecommunications and Information Administration. We have already begun those consultations and expect to have more discussions with NTIA after the hearings.

After receiving my recommendation the Librarian will determine by the October 28th deadline whether or not there are any classes of works that shall be exempted from the prohibition against circumvention of the access control measures during the three years, beginning October 28, 2000 to October 28, 2003.

It is clear from the legislative history that this proceeding is to focus on distinct, verifiable and measurable impacts. Isolated or de minimus effects, speculation or conjecture, and mere inconvenience do not rise to the requisite level of proof. Any recommendations for exemptions must be based on specific impacts of particular classes of works.

The panel will be asking some tough questions of the participants in an effort to define the issues. I stress that both sides will receive difficult questions and none of the questions should be seen as expressing a particular view by the panel. It's merely a way to elicit more information. This is an ongoing proceeding and no decisions have been made yet as to any critical issues in this rule making. The purpose of these hearings is to further refine the issues and to get as much evidence as possible from both sides.

In an effort to obtain all the relevant evidence the Copyright Office reserves the right to ask questions in writing of any participant in these proceedings after the close of the hearings. Any such written questions that we ask and the answers that we receive will be posted on our web site.

What I would now like to do is introduce our panel. To my immediate left is Davis Carson, the general counsel of the Copyright Office. To my immediate right is Charlotte Douglass who is a principal legal advisor to the general counsel. To her right is Rob Kasunic, senior attorney in the office of the general counsel. And, to my extreme left is Rachel Goslins, attorney advisor in our Office of Policy and International Affairs.

Having begun the hearing with my introductory statement and our introduction of the panel, let me now turn to our first panel of witnesses and I'm very pleased that you are all in place and we have Peter Jaszi, who is representing the Digital Future Coalition. We have Sarah Wiant, who is representing the American Association of Law Libraries and from the D.C. Library Association we have Betty Landesman.

I assume that you have worked out an order amongst yourselves or if not, do you want to go in the order that I  -

MR. JASZI: We'll go with the order  -

MS. PETERS: With the order I announced. Okay. Peter, it's yours. Thank you.

MR. JASZI: Thank you very much.

The Digital Future Coalition consists of 42 national organizations, including a wide range of for profit and non-profit entities. Our members, a list of whom is attached to my written testimony, represent educators, computer and telecommunication industry companies, librarians, artists, software and hardware producers, and scientists, among others.

Organized in the fall of 1995, the DFC took an active part in the discussions that led up to the conclusion of World Intellectual Property Organization Treaties in December 1996, and to the final passage of the Digital Millennium Copyright Act implementing those treaties in October 1998.

I speak for the membership of DFC when I say that throughout the process our paramount concern was to assure that however the United States Copyright Law might be modified to suit the conditions of the new technological environment it would maintain its traditional balance between proprietors’ control rights and consumers' use privileges, including, but not limited to, so-called fair use. Thus, we were gratified when the WIPO treaties, in language unprecedented in the annals of international intellectual property law, specifically recognized the need to maintain a balance between the rights of authors and the larger public interest, in addition to calling for party states to provide protection for and, remedies against the circumvention of, technological protection measures.

At the same time we were concerned that so-called anti-circumvention legislation had the potential to disturb that balance significantly, as least at where the law of the United States was concerned. Section 1201(a)(1) of the DMCA, if enforced as enacted, would do just that. As it stands, Section 1201(a)(1), bolstered by the provisions of succeeding sections provides content owners with the legal infrastructure required to implement a ubiquitous system of pay-per-use electronic information commerce.

The basis for this statement is simple and self-evident. Technologies now exist that permit information proprietors to continue to regulate access to digitized copies of content after those copies have been lawfully acquired by others, whether on pre-recorded media or via an Internet download. In today's technological environment the fact that Section 1201(a)(1) prohibits circumvention of technological measures controlling access to information, rather than those protecting against its unauthorized use is of little real significance to consumers.

Indeed, in this proceeding the joint reply comments of the American Film Marketing Association and 16 other content industry associations make it clear (at page 21) that their business plans go beyond implementation of access controls for initial binary permissions or denials of access. In addition, they describe “second level” access controls that allow, and I quote, "management of who can have access, when, how much and from where."

At the heart of this rule making is the inquiry into whether users of copyrighted works are likely to be adversely effected by the full implementation of Section 1201(a)(1). Necessarily, such an inquiry must be speculative since it entails a prediction about the future. However, the stated commitment of the content industries to the technological implementation and legal defense of second level access controls is the best available evidence of the potential for adverse affectation.

This is because if circumvention of second level technological access controls were prohibited, the use of such controls would enable content owners to deny consumers the practical and legal ability to make the various kinds of uses now permitted under copyright law, including those authorized under the fair use doctrine of Section 107 and the various exemptions provided in Section 110.

Indeed, the implications of full enforcement of Section 1201(a)(1) are potentially even more far reaching. Access controls could be employed to prevent consumers from passively reading or viewing the content of digital information products they had purchased, unless, of course, they were willing to pay again and again for the privilege.

Lest these concerns seem farfetched, I would point out that under current fair use precedents a purchaser of digitized entertainment context that has been packaged with technological access controls are permitted to copy, read and analyze the security software in order to achieve inter-operability by means of their circumvention. Notwithstanding this, in Universal Studios v. Reimerdes the member companies of the Motion Picture Association currently are employing provisions of Section 1201 not involved in this rule making to frustrate what is asserted by the defendants to be just such a privileged practice.

Whatever the merits of this particular case, it raises a number of issues concerning the interaction between Chapter 12 and traditional copyright doctrine. Thus, for example, it has been the plaintiffs’ argument that because Section 1201 defines rights, wrongs and penalties that are independent from those provided for in the copyright law itself fair use is inapposite to the analysis of their claims.

To date the judge has concurred. Of course, because Section 1201(a)(1) is not in effect, individual limits users who have employed the DeCSS patch to play back DVDs on their computers have not been sued in the Reimerdes case had the provision been operative, there is no reason to believe that they would have been omitted from the complaint. Cases such as this one highlight the importance of Section 1201(a)(1)(B) through (E), pursuant to which this rule making is taking place.

While there are other provisions of Chapter 12 intended to preserve aspects of the traditional balance between owners and users of protected works, most are so drafted that they can be read not to reach many real world situations that are covered by the more flexible exceptions and exemptions of copyright law. Thus, for example, in the Reimerdes case Judge Lewis Kaplan has ruled that the defendants’ activities did not qualify under the Section 1201(f)(2) exception related to reverse engineering, because, among other things, the entertainment software products contained in DVDs are not “computer programs.”

More generally, with respect to the DMCA's specific exemptions as a whole, a recent NRC study concluded that more legitimate reasons to circumvent access control systems exist than are currently recognized in the Digital Millennium Copyright Act.

For example, a copyright owner might need to circumvent an access control system to investigate whether someone else is hiding infringement by encrypting a copy of that owner's works, or a firm might need to circumvent an access control system to determine whether a software virus was about to infect its computer system.

Now, by contrast with these specific exemptions, Section 1201(c)(1) is generously formulated: “Nothing in this section shall effect rights, remedies, limitations or defenses to copyright infringement, including fair use under this title.” Given its plain meaning, this provision would require judges to interpret and apply Section 1201(a)(1) so as to preserve fair use and other traditional limits on copyright. In the event of such an interpretation many of the concerns just expressed about the specific exemptions would become at least somewhat less urgent.

However, this does not appear to be the interpretation of Section 1201(c)(1) preferred by the content industries. Although courts ultimately may recognize the importance and appropriateness of preserving fair use and other traditional copyright defenses pursuant to Section 1201(c)(1), this is not a foregone conclusion, as David Nimmer has recently pointed out.

At least until such time as this point is clarified, the Librarian of Congress' rule making function under the DMCA remains critical. Its importance is reinforced by a consideration of the legislative history of the relevant provisions. Here, the House Commerce Committee's July 22nd report is of particular significance, since it accompanied the first version of the legislation to contain in substance the provisions which ultimately became Section 1201(a)(1)(B) through (E).

In my written testimony I quote at length from that report. I will do so only briefly here. The report states, for example, that the principle of fair use involves a balancing process “whereby the exclusive interests of copyright owners are balanced against the competing needs of users....” It dwells on the importance of fair use to scholarship, education, the interests of consumers and those of American business, and it concludes for the passage in question that the committee felt “compelled to address” risks that new legislation posed to fair use, including the “risk that the enactment of the bill could establish the legal framework that would inexorably create a ‘pay-for-use’ society.”

The report continued by stating that “the committee has struck a balance that is now embodied in Section 1201(a)(1) of the bill.” As the passage makes clear, it falls to this rule making to consider how fair use in particular and the principle of balance in the United States’ copyright law in general, can best be preserved in the near term.

If it is likely that implementation of technological measures backed by legal sanctions against circumvention will fundamentally alter and thus adversely effect the information consumer’s experience, and I believe it is, the remaining challenge is how to craft meaningful exceptions that are cast, as the statute specifies, in terms of classes of works.

Some of the suggestions made by other participants in the comment phase of the rule making, for example, the American Association of Universities' proposals to exempt “thin copyright” works have considerable merit. Standing alone, however, these suggestions do not fully respond to the most likely adverse effect on consumers' welfare: Their loss of the ability to make free choices about how, when and to what extent to use copyrighted works embodied in lawfully acquired copies (subject, of course, to the constraints imposed by traditional copyright law itself).

And, that leads to the proposal with which I would like to close my statement: a proposal, which I should make clear, represents my personal view and not necessarily that of all the DFC’s member organizations, although I think that ultimately they will support it. It is that the Librarian should exempt from the operation of Section 1201(a)(1) works embodied in copies which have been lawfully acquired by users who subsequently seek to make non-infringing uses thereof.

The proposed language focuses on a class of works that cuts across the various categories defined in Section 102(a). Significantly, it would exclude from its operation works the proprietors had chosen to make available by means other than the distribution of copies (as, for example, by providing limited electronic access only). Indeed, as electronic information commerce evolves the proposed exemption might become less and less significant in practice, just as new business models might require other or additional exemptions in future triennial rule makings.

For the moment, however, limited though the proposed class is, its exemption would provide a safeguard against the most imminent and easily foreseeable harms to otherwise law abiding information consumers that full implementation of Section 1201(a)(1) otherwise is likely to generate. At the same time, by emphasizing the purpose of the intended use, the proposal would provide no safe harbor to those who seek to override access controls for illegitimate purposes, even if they are the owners of the copies subject to such controls.

The proposal has one further advantage. Its adoption would bring the reach of Section 1201(a)(1) into conformity with what the legislative history of the DMCA suggests was the original understanding of its Congressional sponsors as to the section's proper scope. The record reflects that as conceived of by its proponents, the section was intended to apply to the activities of individuals who engaged in circumvention in order to acquire unauthorized initial access to copyrighted works, and not to fair and other non-infringing uses made by those already in possession of copies.

Thus, for example, the House Manager's report, at page 5, explains Section 1201(a)(1) by stating that, and I quote, "the act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a lock room to steal a book." And, in a letter dated June 16, 1998 the Judiciary Sub-Committee Chairman, Representative Howard Coble, stated that the anti-circumvention measures of H.R. 2281, as the legislation then was denominated, were intended to leave users, and I quote, "free to circumvent technological protection measures to make fair use copies."

This sensible vision of the Section 1201(a)(1) prohibition now deserves attention and respect. The future of fair use and other traditional copyright defenses will be determined in significant part by the outcome of the current rule making. By adopting the proposed exemption, the Librarian could take an important step towards stabilizing the balance of copyright law in the new electronic information environment. Thank you.

MS. PETERS: Thank you very much. Sarah.

MS. WIANT: Good morning. My name is Sarah Wiant. I'm the director of the Law Library and a professor of law at Washington and Lee University School of Law. Among the subjects that I teach there include intellectual property and copyrights.

I appreciate the opportunity to testify this morning on Section 1201(a)(1), anti-circumvention provisions of the DMCA. This is an issue critical to the future of copyright law because it determines whether public policy, such as fair use and other exemptions, will survive in fact in the digital world.

I am here today as a representative of the American Association of Law Libraries and while I'm primarily here on behalf of AALL, I also speak for libraries in general and in some sense, a very real sense for the American public.

Law libraries serve their constituencies, law students and faculty, researchers, the general public, the legal community, bench and bar, in our Nation's more than 1,900 law libraries. Our members are committed to the principles of public access to government information that are a fundamental requirement of our democratic society. For most American citizens their local law library is the only source of access to comprehensive federal, state and local law and law related materials. Many of these important publications are becoming increasingly available only in electronic formats.

My statement this morning is going to focus on three areas. First, I will describe the adverse effect of the new anti-circumvention prohibitions on faculties, students and legal researchers in their ability to make non-infringing uses of works legitimately acquired by our institutions.

Second, I will highlight the legal community's concerns regarding limitations of access or on access to federal government publications for which no copyright protection is available.

And, third, I would like to discuss our concerns that as more and more information becomes available only on-line, the ability of libraries to provide permanent access to some publications and to preserve and achieve them has been and will continue to be adversely effected.

As to my first point, in the formal comments provided by AALL and other major library associations, we explained the unique role of our Nation's libraries in serving the information needs of the American public. Millions of users walk into libraries each day looking for information across a broad span of topics and academic disciplines. Their needs are met through a variety of formats. These may be print, it may be microfiche, it may be video, sound recorders, computer discs, CDs, DDDs and, yes indeed, the Internet.

Federal copyright law has for more than 200 years provided the historic balance between the rights of copyright owners and users. We believe a broad exemption from the 1201(a) restriction against accessing and using copyrighted works protected by technological measures, is essential to insure that the public continues to enjoy uses of information provided by libraries.

The anti-circumvention technologies now in place and those under development have a purpose beyond that of controlling unlawful access. They are a mechanism for controlling all uses of work. For both libraries and our users, they will limit use of legally acquired digital information by effectively destroying the first sale doctrine. They will prevent libraries from fulfilling their mission to achieve and provide long term access to information resources and they will impeded all other non-infringing activities that advance the fundamental public good purposes of the copyright law.

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